Kelly v. Marshall's Adm'r
| Decision Date | 14 June 1938 |
| Citation | 120 S.W.2d 142,274 Ky. 666 |
| Parties | KELLY et al. v. MARSHALL'S ADM'R. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Oct. 25, 1938.
Appeal from Circuit Court, Whitley, County.
Action by Andrew Marshall's Administrator against C. M. Kelly and another to recover damages for the negligent killing of Andrew Marshall who was struck by a taxi belonging to the named defendant. Judgment for plaintiff, and the defendants appeal.
Judgment affirmed.
Tye Siler, Gillis & Siler, of Williamsburg, and R. W. Keenon, of Lexington, for appellants.
R. C Browning, of Corbin, and J. B. Johnson, of Williamsburg, for appellee.
C. M Kelly and James Offutt appeal from a joint and several judgment, rendered against them in the Whitley circuit court on the 2nd day of February, 1937, for $8,000 in damages for the negligent killing of Andrew Marshall, deceased. By their motion and grounds for a new trial they complain of fourteen alleged errors, but counsel virtually waives all, except the following: (1) The court erred in instructing the jury; (2) in admitting incompetent evidence; (3) in refusing to continue the case because of the absence of the witness, Arnold Stewart; and (4) that the verdict was against the weight of the evidence and not supported by the law.
A discussion of these alleged errors, 1, 2 and 4, requires a statement of the material parts of the evidence developed upon the trial. Appellee's cause of action is based upon the alleged general negligence of James Offutt, the agent and servant of C. M. Kelly, who was operating a taxi belonging to Kelly that caused the death of Andrew Marshall, a boy, nine years of age. Appellants, in answering denied the material allegations of the petition, and by separate paragraphs alleged: (1) That Marshall's death was caused by his contributory negligence, and (2) they further alleged that Offutt, the agent, was operating at the time of the accident the car in a prudent and careful manner, and while doing so, Andrew Marshall ran into and against the car which resulted in his death; that his death so far as appellants were concerned was unavoidable. The allegations of the answer by reply were denied. On these issues the case was tried and the proof heard by the court and jury.
On Saturday, September 12th, 1936, between nine and ten o'clock in the morning of that day, on Main Street, between the intersections of 17th and 18th Streets of South Corbin, a portion of the city of Corbin proper, Andrew Marshall was injured and killed by being struck by a taxi owned by appellant Kelly, and operated at the time by Offutt. The evidence establishing the liability for the injury of the boy is in conflict; the exact location on the street where he was injured and the time and place when struck by the taxi; the rate of the speed of the taxi at the time it injured the boy; the question whether the boy suddenly or unexpectedly jumped against the taxi from a moving wagon in which he was at the time riding; or whether he was walking or running in the street at the time or attempting to cross the street when struck, or whether Offutt, the operator of the taxi, negligently failed to give notice of his approach in the crowded street by the horn on his taxi, as well as the rate of speed that the taxi was running, or whether the accident was in the business or residence portion of the city, or in both, are in sharp dispute. The undisputed facts are, that Andrew Marshall in company with a neighbor boy, Arthur Smith, who was about ten years of age, at some point on 16th Street before reaching the 17th Street intersection, were riding in a coal wagon together, in charge of Taulbey Stewart who was traveling north on Main Street going toward Corbin proper. In front of Lawson's store on Main Street, Smith and Marshall dismounted from the wagon and went up in front of Neal's filling station and there obtained a drink of water. Smith remained at the station, but the Marshall boy left it and traveled upon the sidewalk toward Williamsburg. The Smith boy saw him last near a telephone pole up the street near Stanley's store. There were wagons and other vehicles parked on each side of the street near Stanley's store. Smith did not see the taxi strike the boy, but saw the body of the boy after it was struck which was near to or even with the telephone pole where he had seen him last. Several witnesses were introduced by appellee who claimed to have seen the taxi strike the boy. In many respects their evidence fails to agree. Each of them stated that they saw the car when it struck Marshall; that he was in the street apparently attempting to cross it. All agree that Offutt, the driver of the taxi, did not sound his horn nor give any signal of his coming. He was running his taxi at a rate of speed ranging from 40 to 45 miles an hour, according to the testimony of several witnesses. They also stated that the taxi skidded when it struck or was about to strike the boy, 45 feet or 15 steps; that the headlight of appellant's taxi struck the boy and was damaged and Marshall was knocked with great force by the moving car, causing his head to strike the handle of the door on the side of the car that Offutt was driving.
Alph Parker, a witness for appellee, stated that he was on the sidewalk west of the street going south about 50 or 60 feet from where the boy was struck by the taxi; that he saw the taxi coming north; that it was traveling from 40 to 45 miles an hour; that he saw the boy before he was struck; that he was 3 or 4 feet from the berm of the street near the taxi on the west side of the street going north. The boy was traveling on that side of the street. Appellants' taxi was traveling in the same direction of the boy and on the west or the wrong side of the street. There was sufficient space for the taxi to have passed the boy, had it remained on the right side of the street; that it was approaching the boy from his rear; that the accident occurred in front of Stanley's store; that the wagon and team were on the west side going north, and as the taxi approached the wagon and team, it cut around the corner on the right hand side and struck the boy; that the headlight on the taxi first struck the boy as he was going from the taxi and knocked him back against the handle of the door of the taxi. Wes Rogers stated that he was traveling along the sidewalk within 15 or 20 steps of the boy when he was struck; that the boy was on the west side of the street going north; that the taxi was on the same side going north, which was the wrong side for it to travel; that there was nothing on the paved road to prevent the taxi from traveling upon the right side or to cause him to move over on the west or left side; that the boy was struck in the back of the head by the handle of the door; that the taxi at that time was going at a rate of speed of from 40 to 45 miles an hour; that the taxi skidded and left marks upon the street, three or four times the length of the taxi. Austin Little stated that he was in front of Neal's service station on the west side of the highway about 100 feet from the accident. He saw a wagon on the west side of the street on which two boys were riding, going south; that when the wagon got near Neal's filling station, the boys got off and went into the filling station. One of them was Arthur Smith, the other Andrew Marshall. The Smith boy got a drink of water and remained at the station, but the Marshall boy proceeded up the sidewalk. He saw the Marshall boy out in the street about 2 feet on the west side. The taxi came along the street on the right hand side. It changed its course to the center of the street and toward the left hand side where it struck the boy; that the bumper and fender hit the boy and threw him up. He saw where the taxi had skidded; that the marks showed the skid to extend 15 steps; that the prints of the skidding were about the center of the street. The taxi was traveling, as he estimated it, about 40 miles an hour when it struck the boy. He saw the wagon in which the two boys were riding after it left the filling station and it was on the side of the street and off of the berm. Another wagon or truck was on the other side of the street at about Stanley's store. The boy was struck near Stanley's store. When struck by the taxi he was a good distance behind the wagon, but was on the side that the wagon was on at the time the taxi struck him. The right front headlight struck the boy and the last time he saw him, he was off of his feet. He thought that the front fender and headlight first struck him and then the taxi moving on, caused his head to strike the handle of the car door. The boy was 12 or 15 steps north of the wagon when he was struck. Arthur Smith who was riding in the wagon with Marshall, stated that they got off of the wagon near Stanley's store which is on the same side of the street as Neal's filling station; that he went into the station and got a drink and after that the Marshall boy went up the street; that the last time he saw him, he was at a telephone pole; that after he was struck he saw the body of the boy near the same telephone pole; his head was on the concrete and his feet off of and about the middle of the street. Herbert Shelton and Lisha Green, barbers, who were in their barber shop on Main Street, at the time of the accident, stated that they heard a loud noise, indicating the skidding of a car upon the concrete. They ran out into the street and found the taxi was about in the middle of the street on the west side of the highway going north; that the skid marks on the concrete were stepped off in their presence and amounted to 45 feet or 15 steps. There was a wagon on the other side of the street on the berm and off of the concrete; that the skid...
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