Malcolm v. Nunn

• Decision Date: 13 November 1928
• Citation: 226 Ky. 275
• Parties: Malcolm v. Nunn et al.
• Court: United States State Supreme Court — District of Kentucky

Page 275

226 Ky. 275

Malcolm v. Nunn et al.

Court of Appeals of Kentucky.

Decided November 13, 1928.

1. Automobiles. — Under Ky. Stats., sec. 2739g-28, requiring driver of automobile to sound horn or other device when necessary as warning of approach to pedestrians, sounding of horn is only required when it is necessary to give warning to pedestrians.

2. Automobiles. — In action for injury to pedestrian by automobile driven by defendant, testimony that driver failed to sound horn, without proof that there was any necessity therefor, did not make case for jury, on ground that no warning of approach was given, as required by Ky. Stats., sec. 2739g-50, of automobile drivers.

3. Automobiles. — Pedestrian, suing for injuries by automobile, specifying negligence as reckless, careless driving, at rapid rate of speed, without giving any signal or warning of approach, is confined in proving case to specified acts of negligence.

4. Negligence. — Where question is one of negligence, or no negligence, and facts established by evidence are consistent with either view, court should not submit case to jury, because party affirming negligence has failed to prove it.

5. Automobiles. — In action by pedestrian for injury sustained when struck by automobile, evidence that front wheel of automobile stopped on pedestrian's foot conclusively showed that it must have been traveling at very slow rate of speed.

6. Automobiles. — Where there was neither allegation nor proof, in pedestrian's action for injury by automobile, that driver was under 21 years of age, and no proof that driver was acting as agent of his father, or was driving on any mission or business of his father, at time of accident, father would not have been responsible under family purpose doctrine, even if driver had been negligent.

Appeal from Crittenden Circuit Court.

H. PATE WELLS and VERT C. FRASER for appellant.

C.S. NUNN and J.W. BLUE, JR., for appellees.

OPINION OF THE COURT BY JUDGE LOGAN.

Affirming.

The appellee, Bruce Nunn, was driving a car in the city of Marion on December 13, 1926, when it struck the appellant, J.W. Malcolm, and did him some injury. He instituted suit against Bruce Nunn and Dr. F.W. Nunn, the father of Bruce Nunn, alleging as to Dr. Nunn that he was the owner of the car, and that the family purpose doctrine should be applied to him. The negligence alleged in the petition is that Bruce Nunn was running the automobile at a high and dangerous rate of speed, and that no warning of his approach was given.

The answer was a denial of all negligence and a plea of contributory negligence. The case went to trial, and at the conclusion of the evidence offered in behalf of appellant the trial court directed the jury to return a verdict in favor of appellees. There was no evidence that the automobile was driven at a high or dangerous rate of speed at the time of the accident. Appellee testified that no signal or warning was given, but he testified to no fact which would show, or tend to show, that any signal was necessary. Under the provisions of section 2739g28, Ky. Stats., the driver of every automobile on a public highway is required to sound a horn, or other sound device, whenever necessary, as a warning of the approach of such vehicle to...