Mann v. Woodford
| Citation | 217 Ky. 491 |
| Parties | Mann v. Woodward. |
| Decision Date | 30 November 1926 |
| Court | United States State Supreme Court (Kentucky) |
1. Automobiles — Question of Whose Negligence Caused Collision Between Automobile and Buggy at Intersection Held for Jury. — In action for damages from collision of automobile and buggy at street intersection, question of whose negligence caused accident held for jury.
2. Evidence — Exclusion of Answer to Question Whether Defendant could have Stopped Car and Prevented Accident Held Proper, as Calling for Conclusion and Being Argumentative. — Excluding answer to question whether defendant saw plaintiff in buggy in time to stop car held proper, as being argumentative and calling for conclusion and matter covered being for jury.
3. Appeal and Error — Sustaining Objection to Leading Question Held Not Prejudicial, where Court Permitted Witness to Answer Question when Properly Put. — Sustaining objection to leading question whether defendant put on brakes before striking plaintiff's buggy held not prejudicial, where court permitted witness to answer same question when properly put.
4. Appeal and Error — Exclusion of Answer to Question as to Place of Collision Between Automobile and Buggy Held Not Prejudicial to Defendant, in View of Contradictory Prior Testimony. — After testimony by defendant that collision between buggy and automobile occurred at northeast corner of intersection, exclusion of answer to question whether defendant struck plaintiff on southeast corner of intersection held not prejudicial to defendant.
5. Evidence — Nonexpert Witness Cannot Testify Whether Defendant could have Avoided Collision After Buggy Drove in Front of Automobile. — Witness, not qualified as expert, cannot testify whether defendant in automobile colliding with buggy could have avoided accident after buggy drove in front of him; question being for jury.
6. Pleading — Answer of Automobile Driver, Relying on Ordinance, but Not Setting it Out, Held Demurrable as Pleading a Conclusion. — Answer of automobile driver relying on ordinance as giving him right of way over plaintiff's buggy at street intersection, and not setting out ordinance and facts bringing his case within it, held demurrable as pleading a conclusion.
7. Automobiles — Vehicle Approaching From Right on Superior Class Highway has no Greater Rights Under Statute (Kentucky Statutes, Section 2739g-37). — Kentucky Statutes, section 2739g-37, regulating right of way at intersections, does not give vehicle operator approaching from right any greater rights because he is on superior class highway.
8. Automobiles — Answer Held Insufficient to Show Defendant Automobile Driver had Right of Way at Intersection Because on Superior Class Highway (Kentucky Statutes, Section 2739g-37). — In action for damages from collision between plaintiff's buggy and defendant's automobile at intersection, answer that defendant was entitled to right of way because on superior class highway not showing that he was nearer to intersection than plaintiff, though he was on plaintiff's right, held insufficient in view of Kentucky Statutes, section 2739g-37.
9. Automobiles — That Defendant Automobile Driver Had Right of Way at Intersection May be Shown Under General Denial (Kentucky Statutes, Section 2739g-37). — In action for damages from collision between buggy and automobile at intersection, that defendant had right of way under Kentucky Statutes, section 2739g-37, may be shown under general issue.
10. Pleading — When Pleading is Insufficient, Better Practice is to Sustain Demurrer and Give Pleader Opportunity to Amend, Rather Than to Sustain Motion to Strike. — When pleading is insufficient, better practice is to sustain demurrer in order to give pleader opportunity to amend, rather than to sustain motion to strike.
11. Appeal and Error — Striking Allegation in Answer as to Right of Way in Automobile Collision Action Held Not Prejudicial, where no Amendment was Possible. — Striking allegation in answer, in action for damages from collision between buggy and automobile at intersection, that defendant was on superior class highway, giving him right of way under Kentucky Statutes, section 2739g-37, held not prejudicial since no amendment was possible and defendant could still introduce evidence as to right of way.
12. Automobiles — Refusal to Charge that Driver of Automobile Colliding with Buggy at Intersection Had Right of Way Held Proper Under Evidence. — In action for damages from collision between automobile and buggy at intersection, refusal to charge that defendant had right of way held not error under evidence.
13. Appeal and Error — Refusal of Instruction, in Automobile Collision Case at Intersection, Imposing Duty on Plaintiff to Keep Lookout, Held Not Prejudicial in View of Evidence and Instruction. — In action for damage from collision between buggy and automobile at intersection, refusal of instruction imposing duty on plaintiff to
keep lookout held not prejudicial, where general contributory negligence instruction was given and evidence indicated plaintiff had right of way.
14. Trial — Concrete, Rather Than General, Instruction on Contributory Negligence Should Be Given. — It is better practice to give concrete instruction on contributory negligence, rather than general instruction on question.
15. Trial — Instruction Permitting Recovery for Accident Held Not Erroneous as Assuming that Plaintiff Exercised Ordinary Care. — Instruction that "if jury believed from evidence" that defendant failed to perform duties required, and as direct result, while plaintiff was exercising ordinary care, accident occurred, plaintiff could recover, held not erroneous as assuming that plaintiff was exercising ordinary care.
16. Automobiles — Instruction on Negligence of Driver of Automobile Colliding with Buggy at Intersection Held Proper Under Evidence. — Since, in action for damages for collision between buggy and automobile at intersection, even if plaintiff was negligent, it was question for jury as to whether defendant, using ordinary care, could have seen horse and buggy far enough away to avoid collision by use of ordinary care, instruction so qualifying recovery held proper.
17. Pleading — Refusal, in Automobile Collision Case, to Admit Ordinance, Stricken from Answer, Held Proper. — Refusal of court in automobile collision case to admit ordinance held proper, where demurrer to paragraph of answer pleading ordinance had been sustained and no amendment had been made.
Appeal from Henderson Circuit Court.
HENSON & TAYLOR for appellant.
DORSEY & DORSEY for appellee.
Affirming.
This is an appeal from a judgment for $6,500.00 for personal injuries and damages to appellee's buggy and harness received in an automobile accident alleged to have been caused by the negligence of appellant.
The accident occurred at the intersection of Washington and Green streets in the city of Henderson. At the time of the accident appellee was driving east in a buggy on Washington street and appellant was driving north in an automobile on Green street. According to appellee's evidence, he was driving in a jog to the right of the center of Washington street, and after his horse and the greater portion of his buggy had passed the line of the Green street intersection the collision occurred. The buggy was struck by the automobile just between the two wheels, and the buggy was carried into the curbing and a telephone post at the northeast corner of the intersection. There were marks on the street from the point of the collision to the place where the buggy was carried. In his judgment appellant was driving about twenty-five miles an hour. No signals were given of his approach and the headlights on the car were not burning. Besides other injuries, appellee sustained a compound fracture of the leg between the ankle and the knee, and it was impossible to set the bone and form a union, with the result that the leg moves like a joint. Since the accident he has been compelled to use crutches. His hospital and physician bill amounted to about $900.00, and he has been prevented from doing any work since the date of the injury.
On the other hand, the evidence for appellant is that about a quarter to eight o'clock on the evening of the accident he started from his home on Green street in his automobile. He had gone only about a square from his home before entering the intersection of Washington and Green streets. He was driving on the right side of the street, which was about fifty feet wide. He had not gone far enough to put his running gear in high, but was running in second, and at the rate of about twelve miles an hour. Before he approached the intersection he blew his horn three or four times. He was looking down the street, and as he approached the intersection he looked both ways before entering. Both lights on his machine were burning. As he entered the intersection appellee, who was proceeding on the left hand side of the intersection, drove his horse and buggy in front of him so suddenly that it was too late for him to stop and avoid the accident. He was not more than twelve feet away when appellee drove in front of him, and he struck appellee near the northeast corner instead of on the southeast corner.
In view of the conflict in the evidence, it was for the jury to say whose fault caused the accident.
While appellant was on the stand the court excluded the answer "No, sir," to the question "Did or did you not see...
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