Major Taylor & Co. v. Harding

• Decision Date: 26 November 1918
• Parties: MAJOR TAYLOR & CO. v. HARDING.
• Court: Kentucky Court of Appeals

206 S.W. 285

182 Ky. 236

MAJOR TAYLOR & CO. v. HARDING.

Court of Appeals of Kentucky.

November 26, 1918

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by William G. Harding against Major Taylor & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

Burwell K. Marshall, of Louisville, for appellant.

Edwards Ogden & Peak, of Louisville, for appellee.

CARROLL J.

The appellee, William G. Harding, while in the act of walking across one of the streets of the city of Louisville, known as Bardstown Road, at the point where it is intersected by Ellwood avenue, was struck by an automobile truck owned by the appellant, Major Taylor & Co., and being operated by its servant Zimmerman. As a result of the collision, Harding was seriously injured, and in a suit to recover damages for the injuries sustained, upon the ground that they were caused by the negligence of Zimmerman in operating the truck, there was a judgment in his favor for $1,865, and this appeal is prosecuted in an effort to secure a reversal of the judgment.

Briefly the facts are substantially these: Harding, early in the evening, started to walk across Bardstown Road, at its intersection with Ellwood avenue, from the south side to the north side, for the purpose of taking a street car that would stop on the north side of the road on its way into the city that it was dark and had been raining, although it appears that the rain had quit falling at the time Harding started across the road; that the place was lighted by a street lamp suspended in the middle of the road at the intersection of the avenue; that, when he had gotten probably halfway across the road, he was struck by the truck operated by Zimmerman and knocked some 15 feet by the force of the collision; that the truck after striking him ran between 75 and 100 feet before it was stopped.

The evidence for Harding was to the effect that before he started across he looked up and down the road to see if any automobiles or vehicles were approaching and, not discovering any, went on his way, and was struck by the truck as stated; that the truck at the time it struck him was going at a speed of about 25 miles an hour, and the chauffeur did not sound any horn as he approached the intersection, or in that vicinity. On the other hand, there was evidence for Major Taylor & Co. that the truck was going at a speed of about 12 miles an hour; that the horn was sounded as it approached the intersection; that the chauffeur was keeping a lookout; and that Harding, not observing its approach, walked into the side of the truck near the front end, thereby receiving the injuries complained of. It will thus be seen that there was a sharp conflict in the evidence upon the material issues in the case, but there was sufficient evidence to sustain the jury in finding as they did that the theory of the collision presented by Harding was the correct one, and so nothing more need be said upon this feature of the case.

The court, in instructing the jury as to the duty the driver of the truck was under, told them in substance that it was the duty of Zimmerman as he approached the intersection to keep a lookout ahead, to operate his truck at a reasonable rate of speed, having regard for the traffic, to have his truck under reasonable control, to give reasonable and timely warning of the approach of the truck to the intersection by the usual and customary signals, and to exercise ordinary care generally to avoid colliding with any person who might be using the street, and if they believed from the evidence that he failed to perform any of these duties, and by reason of such failure, if there was any, the collision was brought about, and Harding thereby injured, they should find for Harding.

They were further told that it was the duty of Zimmerman not to operate his truck at a greater rate of speed than 15 miles per hour at the place of collision, and if they believed he did operate his truck at a greater speed than this, and Harding was injured by the collision of the truck with him, they should finding for Harding, unless they believed the rate of speed was not the proximate cause of the collision.

In another instruction, the jury were advised that it was the duty of Harding to...