Ken-Ten Coach Lines, Inc. v. Siler

• Decision Date: 08 November 1946
• Parties: KEN-TEN COACH LINES, Inc., v. SILER.
• Court: Kentucky Court of Appeals

197 S.W.2d 406

303 Ky. 263

KEN-TEN COACH LINES, Inc., v. SILER.

Court of Appeals of Kentucky

November 8, 1946

Appeal from Circuit Court, Whitley County; J. B. Johnson, Judge.

Action by Singleton Siler against the Ken-Ten Coach Lines, Inc., to recover for personal injuries sustained by plaintiff in an accident while a passenger on defendant's bus. From a judgment for plaintiff for $3,500, entered upon the verdict of the jury, the defendant appeals.

Judgment reversed with directions to grant new trial.

Stephens & Steely, of Williamsburg, for appellant.

C. B Upton, of Williamsburg, for appellee.

REES Chief Justice.

The Ken-Ten Coach Lines, Inc., operates a bus line out of Williamsburg, Kentucky. On September 20, 1945, one of its buses going from Williamsburg to Corbin, Kentucky, overtook a passenger automobile traveling in the same direction. The bus collided with the automobile, was deflected to the left, and overturned. There were twelve passengers on the bus including Singleton Siler who later brought this action to recover damages for personal injury which he claimed he suffered in the accident. The jury returned a verdict for $3,500 for the plaintiff, and, from the judgment entered thereon, the defendant has appealed.

Reversal of the judgment is sought on three grounds: (1) The evidence failed to show any negligence on the part of the driver of the bus, and the defendant's motion for a directed verdict in its favor, made at the conclusion of all the evidence, should have been sustained; (2) the court erred in instructing the jury; and (3) the verdict is grossly excessive.

Appellant insists that the uncontradicted evidence shows the following facts concerning the accident: The bus overtook an automobile traveling in the same direction, and the driver of the bus sounded his horn. The automobile moved to the right, but, when the bus was only 20 feet away, suddenly swerved to the left in the path of the bus and the bus driver was unable to avoid the collision. The bus left the concrete pavement, crossed the berm of the road, and went into the ditch. When the left front wheel struck the ditch, which was 12 inches deep and 10 or 12 inches wide, the driver lost control, the bus continued forward up a steep bank, and then turned over on its right side. The right front tire of the overtaken automobile blew out before the collision, and it is appellant's theory that the blowout occurred just as the driver of the bus undertook to pass; that the automobile began to swerve to the right and the driver, attempting to straighten it in the road, swerved it to the left of the center line immediately in front of the bus. It is contended that, under these facts, the accident was unavoidable.

We think, however, there was some evidence from which the jury might reasonably infer that the accident would not have occurred if that degree of care required of a common carrier had been exercised at all stages of the transaction. Three of the passengers and the driver of the bus, Charles E. Morgan were the only eyewitnesses who testified concerning the accident. Two of the passengers, including the appellee, were unable to say how the accident happened. They only knew there was a collision, and that the bus swerved to the left, ran up a bank, and overturned. John M. Higgins, a school teacher, boarded the bus at Spruce Creek nine or ten miles west of Corbin and ten minutes before the collision occurred. He was sitting on the right-hand side in the third seat from the rear of the bus. The road was straight for a distance of 300 or 400 yards west of the point of collision, and he saw the automobile 100 or 200 feet in front of the bus apparently out of control, or, as the witness expressed it, 'I first saw the car going along--it didn't look like he was going very fast. As we got close it looked like something was wrong with him; he began to pull across the center line and as we got closer I noticed he was wiggling.' The bus was traveling at a speed of 45 miles an hour, and its speed was not reduced prior to the collision. The bus driver did not sound the horn or give any signal before he attempted to pass the automobile. The witness stated that he later went to the scene of the accident and made certain measurements. The pavement was of concrete 20 feet wide and the berm on the left side of the road at the point of collision was 9 1/2 feet wide, leaving a space of 16 1/2 feet between the ditch and the left side of the automobile if the latter was 3 feet to the left of the center line. The witness testified that the overtaken vehicle was '2 feet or maybe 3 feet' over the center line when the bus was swerved to the left to avoid a collision. The testimony of this witness was sufficient to take the case to the jury on the issue as to whether the driver of the bus exercised that degree of care required on the occasion in question. If his testimony is true, the driver of the bus, had he been keeping a proper lookout ahead, could have seen the automobile 'zigzagging' in the road in time to have reduced the speed of the bus materially and to have passed to the left of the automobile in safety. On cross-examination Higgins was confronted with a written statement made immediately after the accident and one made in the presence of appellant's attorney about ten days later. In the statement made at the time of the accident the witness said that in his opinion 'the driver of the passenger car who had a blowout and was across the road in front of the bus' was at fault, and in the later statement said 'the bus was starting to pass a car in front when this car had a blowout.' The efforts of the witness to explain these statements and to reconcile them with his testimony at the trial are not wholly convincing, but they were before the jury to be considered by it only for the purpose of affecting the credibility of the witness. The court properly so admonished the jury.

The court gave ten instructions, some of them lengthy, and appellant complains of instructions 1, 2, and 3, and especially of instruction A given on the court's own motion. Instruction No. 1 told the jury, in substance, that if they believed from the evidence that the plaintiff was injured by reason of the collision between the automobile and the bus upon which the plaintiff was a passenger, and further that the collision was caused by the negligence of the operator of the bus, the law was for the plaintiff. The instruction concluded:

'But unless the jury shall believe from the evidence that the said Singleton Siler was injured in and by reason of the collision between the bus on which he was a passenger and the automobile mentioned in the evidence upon the occasion mentioned in the evidence, the law is for the defendant, and the jury should so find.'

The instruction is a copy of instruction No. 1 given in McGraw v. Ayers, 248 Ky. 166, 58 S.W.2d 378, and found in Stanley on Instructions, section 253. The appellant in the Ayers case complained of the instruction because it did not...