McFarland v. Bruening

• Decision Date: 26 January 1945
• Citation: 185 S.W.2d 247,299 Ky. 267
• Parties: McFARLAND v. BRUENING (two cases). SAME v. BOSCHINI.
• Court: Kentucky Court of Appeals

185 S.W.2d 247

299 Ky. 267

McFARLAND v. BRUENING (two cases).

SAME v. BOSCHINI.

Court of Appeals of Kentucky

January 26, 1945

Appeal from Circuit Court, Madison County; Wm. J. Baxter, Judge.

Automobile negligence actions brought separately by Henry C. Bruening by his wife Ethel Bruening, and by their daughter Martha Boschini, against O. B. McFarland, who counterclaimed against the first-named plaintiff for damage to defendant's truck. The cases were tried together and the jury awarded damages to each plaintiff, and, from the judgment, defendant in each case appeals.

Affirmed.

E. Selby Wiggins, of Richmond, for appellant.

Stanley Powell, of Berea, for appellees.

STANLEY Commissioner.

While Henry C. Bruening, his wife and daughter, of Dubois Pennsylvania, were traveling south on U.S. Highway No. 25 in the late afternoon of November 29, 1943, near the northern limits of Berea, a truck belonging to O. B. McFarland, loaded with coal, traveling north, downhill, suddenly came before them from behind an automobile which had stopped momentarily on the highway to let a passenger out. The Bruening car collided with the back side of the truck as it was headed diagonally across the road in front of it. The driver of the other automobile had seen the truck coming up behind him and held out his hand to signal that he was about to stop. The hydraulic trakes of the truck were so much out of order, due to the absence or failure of the fluid in the cylinder of the brake system, that the truck could not be stopped. The driver had come from East Bernstadt, some 40 miles, without any brake. As he came up behind the stopped car, he realized the peril of striking the passenger getting out of it, or of colliding with the oncoming automobile of the Bruenings, and headed across the road toward a yard or grassy plot in his efforts to avoid colliding with either. That is the case of the plaintiffs, the occupants of the Bruening car, who were seriously injured.

The defendant testified that his truck had been examined a day or two before the accident and that the brakes were in good shape when he drove it to East Bernstadt the morning of the accident. He had returned to Lexington in another truck. The driver, Joe Damrel, 17 years old but having a driver's license, testified that when he saw the automobile 150 feet in front of him slowing down, but stopping without signal 'I started riding my brakes until I got up to him.' The brakes, however, 'were not in good enough shape to stop on that hill.' When asked how the brakes operated, he answered: 'Pretty good; they were holding pretty fair. They were not in perfect shape, but they would hold by having the emergency on and lock all the wheels of the truck and the hand brake.' He 'jerked the emergency brake on and cut over into the field' when he saw the oncoming automobile. The truck was wholly off the surface of the highway and the plaintiff's automobile ran over to where it was and struck it between the cab and the hind wheels. The loaded truck turned over. That is the case for the defendants.

The separate cases of the three occupants of the Bruening automobile were tried together. The verdict was $1,500 in favor of Mr. Bruening for personal injuries, lost time, expenses and damage to his automobile. In favor of Mrs. Bruening for $1,400 for personal injuries, lost time and expenses, and in favor of Mrs. Boschini, their daughter, for $1,400 for personal injuries and expenses.

It was not error to try the cases together. In Sheetinger v. Dawson, 236 Ky. 571, 33 S.W.2d 609, and Hirsch v. Warren, 253 Ky. 62, 68 S.W.2d 767, we commended the practice of trying cases together where they arise out of the same facts and the parties are substantially the same, but held that it was error to do so in them, in each of which a husband and wife were the plaintiffs, because of the bar against one testifying for the other. Since those opinions were delivered, Section 606, Civil Code of Practice has been amended by Acts 1940, c. 95, so that a husband or wife is now a competent witness for the other, with certain exceptions not present here. Whether there should be a joint trial is a matter of discretion in the trial court, determinable upon whether it can be done without any undue advantage to any party. We think it was proper to try these cases together. Toppass v. Perkins' Adm'x, 268 Ky. 186, 104 S.W.2d 423; Greer v. Richards' Adm'r, 273 Ky. 91, 115 S.W.2d 568.

Clearly, the defendant was not entitled to a peremptory instruction. There was very little in the evidence to save him from an adverse one.

It was not error to permit the plaintiff, Bruening, to recover for the damage to his automobile although he had indemnity insurance that may or will enable him to recover from his insurer. The insurance was not for the defendant's protection.

The plaintiff's counsel improperly tried to get before the jury in his examination of the defendant that he could not or had not obtained the presence of the driver of his truck because he was in jail, and counsel went out of the record with some bad insinuations. The driver did appear and testified. In his brief, counsel confesses that he was 'slightly loose in his argument,' but submits that it was not prejudicial. We regard the conduct as a more serious indiscretion, but concur in the conclusion that it was not prejudicial to the defendant's substantial rights.

In Bruening's case the court instructed that it was the duty of both the plaintiff and the defendant 'to bear to the right and keep to the right side of the road when meeting a vehicle coming in the opposite direction,' and in the other two cases (in which neither plaintiff was chargeable with any negligence of Bruening, the driver) that was one of the enumerated...