Lacy v. Higgs
| Decision Date | 26 January 1951 |
| Parties | Lacy v. Higgs. |
| Court | United States State Supreme Court — District of Kentucky |
Action by Anderson Lacy, Guardian of Gordon Lacy against Oran Higgs for injuries suffered in collision between bicycle and automobile. The Circuit Court, Rowan County, John J. Winn, J., peremptorily instructed jury to find for the defendant, entered judgment for the defendant, and the plaintiff appealed. The Court of Appeals, Stanley, C., held that evidence was sufficient to take case to jury on issue of last clear chance.
Judgment reversed.
1. Automobiles. — In action by cyclist for injuries sustained in collision of bicycle and automobile, where defendant's plea of contributory negligence was not controverted by reply or of record, recovery could not be had on theory that defendant was negligent in failing to apprehend when he was 150 feet from parked truck that plaintiff on bicycle 25 or 30 feet on other side of truck would come around it into path of automobile.
2. Negligence. — In tort action, where defendant's plea of plaintiff's contributory negligence is not controverted by reply or of record, it is fatal to plaintiff's right of recovery and authorizes a peremptory instruction for defendant.
3. Negligence. — Where there is only a general plea of negligence, plaintiff is entitled to have his case submitted under last clear chance rule without having pleaded it, if evidence authorizes such submission, and such rule applies even though plaintiff concedes that he was contributorily negligent.
4. Automobiles. — In action by cyclist to recover for personal injuries, where motorist collided with bicycle when cyclist came from behind a truck parked on motorist's side of highway whether under last clear chance rule, motorist saw or by exercise of ordinary care could have seen cyclist in time to have avoided striking him, was question for jury.
E.M. Hogge and Lester Hogge for appellant.
Hubert Counts, Davis, Boehl, Viser & Marcus, and James M. Graves, A.J. Deindoerfer for appellee.
Before John J. Winn, Judge.
STANLEY, COMMISSIONER.
Reversing.
The appellant, Gordan Lacy, a thirteen year old boy, suffered severe head injuries in the collision of his bicycle and a car of the appellee, Oran Higgs, on the afternoon of July 31, 1948, on U.S. Highway 60 near Pettitt's Store east of Morehead. In the suit for damages, the court peremptorily instructed the jury to find for the defendant.
The boy was riding his bicycle along with but just behind three other children about the same age who were walking on the north side of the road facing the traffic. They had come along on the gravel shoulder of the road, which was unusually wide before and at the point of the collision. A bread truck was parked entirely off the paving, but headed east, the wrong way. The three children went safely around it, but the bicycle either struck or was struck by the car of the defendant, traveling west.
The boy testified that he never saw the oncoming automobile because the parked truck was in the way. The best he could remember he turned out onto the paving when 3 or 4 feet, maybe more, behind the parked truck. Helen Caudill, one of the children, testified that after she and the two others had gone around the truck, she looked back and Gordan was even with its front door when he was hit. From her testimony as a whole, it is apparent that she realized the collision was inevitable, turned and saw the boy coming around the truck, but she says she did not see the actual striking of the bicycle. It was shown that it is about fifteen feet from the back end of the truck to the front door; also, that the road is straight and clear for about 900 feet east of the point of the accident. Lewis Fraley was traveling east on the right side of the road and apparently was about even with the parked truck on the other side when the collision occurred. The noise caused him to glance around or to his side, and he saw the bicycle and boy fall, partly on the paving at the back of the truck. The witness had not noticed the parked car but did notice that there were several automobiles meeting him and judged that the Higgs car was traveling 30 or 35 miles an hour.
The plaintiff called the defendant to the stand and examined him as if under cross-examination. He testified he was traveling 25 or 30 miles an hour; had first seen the boy on the bicycle "maybe 50 yards up the road, on the shoulder," and next saw him when he started from behind the truck about ten feet away. At that time the front of his car was even with the front of the parked truck. The boy started to come on the blacktop paving and then his bicycle slid out under the car's fender. He then ran about 20 feet before he could stop. The witness had not seen the other children walking along the side immediately in front of the bicycle.
As a witness in his own behalf, the defendant gave the same testimony with but little in addition or modification. He repeated his testimony that he first saw the boy when he was fifty yards away as he was coming in his direction. At the time, the boy, he estimated, was eighty or ninety feet beyond the parked truck and was in a safe place on the shoulder of the road. He...
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