Louisville Taxicab & Transfer Co. v. Barr

• Decision Date: 19 March 1948
• Citation: 307 Ky. 28,209 S.W.2d 719
• Parties: LOUISVILLE TAXICAB & TRANSFER CO. v. BARR. SAME v. BRYANT.
• Court: Kentucky Court of Appeals

209 S.W.2d 719

307 Ky. 28

LOUISVILLE TAXICAB & TRANSFER CO. v. BARR.

SAME v. BRYANT.

Court of Appeals of Kentucky

March 19, 1948

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division; B. H. Farnsley, Judge.

Actions tried jointly, by Grace Barr and Ivy Bryant against the Louisville Taxicab & Transfer Company for personal injuries sustained in wrecking of a taxicab. Judgments for plaintiffs and defendant appeals.

Reversed.

Robert L. Page, of Louisville, for appellant.

Herbert H. Monsky, of Louisville, for appellees.

STANLEY Commissioner.

The judgment was on a directed verdict for the plaintiffs in a joint trial of actions for personal injuries sustained in the wrecking of a taxicab. The jury awarded damages for $1500 to Grace Barr and $1300 to Ivy Bryant.

On Saturday afternoon, May 26, 1945, these young women engaged a taxicab of the appellant in downtown Louisville. They and Mrs. Bryant's companion, one Angelo Mussetelli, sometimes called Joe Manning, a soldier, went to the home of Gladys Holzapple in St. Matthews. By coincidence, or otherwise, the driver of the cab was William McConathy, who had been an inmate with Mrs. Barr at Ormsby Village, an institution for delinquent and dependent children. The two young women and Mrs. Bryant's companion visited Mrs.

Holzapple fifteen or twenty minutes where they engaged in drinking highballs. Grace Barr admits that she became intoxicated. According to plaintiff's testimony McConathy, the taxi driver, stayed in the machine. The party then decided to go to Ormsby Village, a few miles beyond. On the way it was discovered for the first time, according to Mrs. Barr, that they learned she and the driver had known each other at the Village. The driver turned off on a private lane that led to the home of Marion Owens. Instead of following the driveway at the house he turned off and missed the road altogether, barely missing a tree, and ran over a flower bed which he said he did not see. He inquired the way to Ormsby Village and was given directions, but insisted on going through a narrow, rough lane, over which he ran with terrific speed in a cloud of dust. Owens testified that all four of the parties were drunk. While McConathy was arguing and talking rough to Mr. Owens, Grace Barr was in a sottish stupor, and the other couple on the back seat were 'necking.'

At Ormsby Village, the driver ran around the campus in a reckless way in disregard of the safety of the children who were playing there. According to the plaintiffs, none of the party got out of the cab, but Mrs. Barr called to a priest on the campus and he came to the automobile and talked with her a few minutes. On the contrary, a matron at the Home testified that the two girls and McConathy, the driver, came into the cottage, of which she had charge, and visited with her for about an hour. Grace Barr was drunk, definitely so. Ivy Bryant had the odor of liquor on her breath and acted as if she was intoxicated. McConathy likewise smelled of liquor, and while the witness would not say he was drunk, she realized he was 'drinking.' About a half a mile on the way back toward the city the taxicab ran off the left side of the road and crashed into a telephone pole, breaking it off. The accident occurred in the late afternoon.

The plaintiffs testified that from the time they left Mrs. Holzapple's home, the taxicab driver ran at a 'ridiculous rate of speed,' and that they several times protested; but he insisted that he would 'get us there all right.' They further testified that so far as they knew the driver drank nothing on the trip, and from their viewpoint he 'acted normal' or only 'silly.' But Mrs. Barr had stated in a deposition that 'he seemed like he had a little bit to drink.' The soldier paid the taxi bill at St. Matthews. There is no testimony that any other fee was ever paid, although Mrs. Barr testified the meter was running all the time. They did not get out of the taxicab at the Village, where they had an opportunity to do so, they said, because they were not in a condition to take a bus or another cab back to the city. Neither the driver of the cab, the soldier, Mrs. Holzapple nor Father Maloney testified.

It is the firmly established rule of law that a person who voluntarily enters or rides in an automobile driven by one whom he knows, or in the exercise of ordinary prudence or diligence should know, is under the influence of intoxicating liquor and such condition proximately causes or contributes to an accident, the guest or occupant is himself guilty of contributory negligence which will preclude his recovery of damages for any injury he might sustain. Winston's Adm'r v. City of Henderson, 179 Ky. 220, 200 S.W. 330, L.R.A.1918C, 646; Archer v. Bourne, 222 Ky. 268, 300 S.W. 604; Toppass v. Perkins' Adm'x, 268 Ky. 186, 104 S.W.2d 423; Rennolds v. Waggener, 271 Ky. 300, 111 S.W.2d 647; Mahin's Adm'r v. McClellan, 279 Ky. 595, 131 S.W.2d 478; Whitney v. Penick, 281 Ky. 474, 136 S.W.2d 570; Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021; Newton's Adm'r v. Stengel, 297 Ky. 722, 181 S.W.2d 251; Spivey's Adm'r v. Hackworth, 304 Ky. 141, 200 S.W.2d 131. These cases also show that the same rule applies where a guest or other occupant does not protest or avail himself of an opportunity to avoid continuing to ride in a car driven in a reckless way, where the factor of intoxication is absent.

It is an exceptional case that relieves a common carrier of responsibility for injury to its patron. Always, however, it has the right to rely upon his contributory negligence. So in Adams v. Hilton, 270 Ky. 818, 110 S.W.2d 1088, it was held that the rule of imputed negligence of a driver or of contributory negligence of a passenger does not apply to relieve a common carrier where the vehicle was being driven recklessly. To the same effect are Morris v. City Transfer & Yellow Taxi Company, 220 Ky. 219, 294 S.W. 1030, and Shelton Taxi Company v. Bowling, 244 Ky. 817, 51 S.W.2d 468. The facts in the Adams Case are like those in the instant case, with one material and controlling exception. That is covered by one sentence in the opinion [270 Ky. 818, 110 S.W. 1090]: 'They (the witnesses) are in accord in saying that the driver had nothing to drink.' Nor were there any circumstances that indicated that he was under the influence of intoxicating liquors.

We think the circumstances in this case establish,...