Lieberman v. McLaughlin
| Citation | 233 Ky. 763 |
| Parties | Lieberman v. McLaughlin. |
| Decision Date | 04 March 1930 |
| Court | United States State Supreme Court — District of Kentucky |
2. Appeal and Error. — Where issue between parties was sharply drawn and jury could not have been misled, omission to give instruction that speed in excess of 15 miles per hour is prima facie evidence of unreasonable and improper driving, under Ky. Stats., sec. 2739g-51, is not reversible error.
3. Trial. — Omission of instruction that speed of automobile exceeding 15 miles per hour was prima facie evidence of unreasonable and improper driving under Ky. Stats., sec. 2739g-51, held not error, where pedestrian came in collision with side of car, which made matter of speed immaterial, since it was not proximate cause of injury.
4. Automobiles. — Even though pedestrian crossing street had right of way, it was her duty to exercise ordinary care for her own safety.
5. Automobiles. — Where pedestrian crossing street knew traffic was moving in certain direction, no horn signal was necessary under Ky. Stats., sec. 2739g-28, since sole purpose of sounding such signal is to notify those unaware of danger that vehicle is approaching.
6. Automobiles. — Fact that traffic officer at intersection had permitted pedestrian to proceed did not excuse her from exercising care exacted by law for her own safety.
7. Automobiles. — Duty to use care at street intersection is reciprocal, and both pedestrian and driver of automobile must obey signals of officer, and in addition to that they must exercise ordinary care to avoid accident.
8. Automobiles. — In action for injury to pedestrian struck by automobile at intersection, no basis was afforded by evidence for any instruction respecting duty of defendant as to sounding horn of automobile under Ky. Stats., sec. 2739g-28.
9. Negligence. — Doctrine of last clear chance prevails in Kentucky.
10. Negligence. — It is proper for court to give instruction in accordance with doctrine of last clear chance, if there is any evidence to authorize it.
11. Automobiles. — In action for injury to pedestrian struck by automobile at intersection, doctrine of last clear chance has no application under evidence showing that plaintiff walked against defendant's automobile or that driver skidded car against plaintiff by sudden application of brakes when traffic light changed.
12. Negligence. — Last clear chance doctrine does not arise unless clear opportunity is presented to prevent injury after peril is discovered, or reasonably discoverable by exercise of ordinary care.
13. Automobiles. — In action for injury to pedestrian struck by automobile at intersection, evidence held sufficient to support verdict for defendant contending that plaintiff walked against automobile.
14. Appeal and Error. — Where evidence supports verdict, reviewing court is not at liberty to interfere.
Appeal from Jefferson Circuit Court
JOSEPH SOLINGER and ALEX H. VEENEMAN for appellant.
FURLONG & WOODBURY and CHAS. L. SCALES for appellee.
Affirming.
Gertrude Lieberman suffered serious personal injury when she came into collision with an automobile driven by H.S. McLaughlin. She instituted an action against McLaughlin to recover damages on the ground that her injury was the consequence of his carelessness in the operation of the car. The defendant denied the allegations of negligence on his part and pleaded contributory negligence on the part of the plaintiff. The jury found a verdict for the defendant and the plaintiff's motion for a new trial was overruled, resulting in this appeal. A reversal of the judgment is sought because the court erred: (1) In not taking judicial notice that the place where the accident happened was a closely built-up business section of the city where the speed of an automobile was limited to fifteen miles an hour; (2) in failing to submit to the jury the question whether it was necessary for the driver of the automobile to sound his horn; and (3) in failing to instruct the jury as requested regarding defendant's liability if he failed to embrace the last clear chance to avert the injury. The accident occurred at the intersection of Fourth and Chestnut streets in the city of Louisville. A traffic officer was stationed there to control movement of the traffic, and he operated the semaphore signals for that purpose. Plaintiff's case was predicated upon the position that she had a signal from the officer to proceed, and while doing so was run down by the automobile. The defense was that plaintiff proceeded against the semaphore signal and walked directly against the side of the automobile.
1. The court instructed the jury to the effect that defendant should have his automobile under reasonable control, operate it at a rate of speed that was reasonable and proper, having regard for the traffic conditions and the use of the highway at that time and place, and to keep a lookout ahead for persons or other vehicles in front of him or so near thereto as to be in danger of collision. He further told the jury that if the traffic semaphore light was in the "go" position for the north and south bound traffic then the driver had a right to proceed southwardly over the intersection; but if the light was in the "stop" position for north and south bound traffic, then it was his duty to bring the automobile to a stop. The court also told the jury that it was defendant's duty to exercise ordinary care generally to operate his automobile so as to avoid collision with persons and vehicles using the highway at the time and place. The court did not advise the jury that a speed in excess of fifteen miles per hour was prima facie evidence of negligence, or the circumstances under which the defendant should sound his horn. The statute provides (section 2739g-51) that the rate of speed of an automobile must not be greater than is reasonable and proper, and where the highway passes through a closely built-up business section of any city a speed in excess of fifteen miles per hour constitutes prima facie evidence of unreasonable and improper driving. No testimony was produced as to whether the locality of the accident was a built-up portion of the city. The evidence in the case was closed before noon and the court took a recess. At the afternoon session the plaintiff was recalled and permitted to testify in rebuttal. She was then asked whether the section of the city in the neighborhood of Fourth and Chestnut streets, where the accident occurred, was a built-up business district. The court declined to receive the testimony. It does not appear whether the court acted upon the ground that the testimony was not proper in rebuttal, but should have been adduced in chief, or that it was unnecessary to prove a fact so notorious that notice thereof could be taken without proof. We consider the case upon the acceptance of the latter alternative. It is proper to instruct the jury, in a case where it is material, and the evidence warrants it that a speed in excess of fifteen miles per hour is prima facie evidence of unreasonable and improper driving. Kappa v. Brewer, 207 Ky. 61, 268 S.W. 831; Hornek Bros. v. Strubel, 212 Ky. 631, 279 S.W. 1087; Wight v. Rose, 209 Ky. 803, 273 S.W. 472. But where the issue between the parties was sharply drawn and the jury could not have been misled, the omission to give such an instruction is not a reversible error. Wight v. Rose, supra. The only testimony in this record referring to the speed of the car is that of the traffic officer and the defendant. The former testified that he heard a thump which caused him to look and the lady was then falling. The automobile was stopped within eight feet. The officer, who was only fifteen feet away, said it seemed to him as though the driver tried to stop quickly and his car slid a little bit sideways, and the plaintiff got too close to him. It is not shown how far sideways the car skidded. Asked as to the speed of the car prior to the collision with the pedestrian, the officer answered that it was pretty hard to estimate, but he imagined it was going about eighteen miles an hour. He further stated that he would not be sure about the speed, whether faster or slower than eighteen miles an hour. He did not know whether the car had four-wheel brakes or not, but in any event it stopped within a distance of eight feet. Cf. Wener v. Pope, 209 Ky. 553, 273 S.W. 92. He further stated that the lady came in contact with the left rear fender of the car and that her head hit the handle of the door. Under such conditions it cannot be said that any error was committed in omitting the instruction, because the pedestrian came in collision with the side of the car, which made the matter of speed immaterial, since it was not a proximate cause of the injury. Knecht v. Buckshorn, 233 Ky. 329, 25 S.W. (2d) 727; Denunzio v. Donahue, 204 Ky. 705, 265 S.W. 299; Blackman v. Streicher, 205 Ky. 773, 266 S.W. 633. Moreover, the officer's estimate as to the speed of the car was impaired by the circumstances detailed by him. Wener v. Pope, 209 Ky. 553, 273 S.W. 92. The defendant's testimony that his car was not equipped with four-wheel brakes, and that the speed did not exceed twelve miles per hour, was not substantially contradicted, but rather corroborated by the circumstance that the car was stopped so quickly.
2. It is argued, however, that there was sufficient evidence to require the court to submit to the jury whether it was the duty of the driver under the circumstances to sound his horn. The statute does not require the sounding of the horn unless it is necessary. Section 2739g-28, Ky Stats. The circumstances may be such as to enable the court to say as a matter of law...
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