McGraw v. Ayers

• Decision Date: 14 March 1933
• Parties: McGraw et al. v. Ayers.
• Court: United States State Supreme Court — District of Kentucky

248 Ky. 166

McGraw et al. v. Ayers.

Court of Appeals of Kentucky.

Decided March 14, 1933.

1. Carriers. — Evidence as to negligence of motorbus driver and as to contributory negligence of passenger alleged to have been

injured in collision between motorbus and automobile held for jury.

2. Appeal and Error. — Court of Appeals cannot disturb verdict based on conflicting evidence, unless record indicates that jury was prevented from properly considering case.

3. Trial. — Argument that brakes of motorbus were defective held based on inferences drawn from evidence in case and not to constitute misconduct.

4. Trial. — Objectionable questions as to usual speed of motorbus and argument based thereon held not prejudicial error, where court instructed jury to disregard argument.

5. Appeal and Error. — Argument to jury is not reversible error, except where counsel so widely departs from adopted rules of practice as to indicate design to bring about miscarriage of justice by means approaching corruption.

6. Appeal and Error. — Jury must obey admonition to disregard improper argument, and, absent proof to contrary, presumption is that jury performed their duty.

7. Trial. — Absent proof that jury disobeyed admonition to disregard improper argument, admonition cures such misconduct of counsel.

8. Evidence. — Hypothetical question propounded to expert must be based on, and related to, facts proved in case.

9. Evidence. — Hypothetical question propounded to expert must call for his opinion as to effect of matter submitted and not for conclusion.

10. Appeal and Error. — No complaint of hypothetical question can be made where only difference between facts proved and those embraced in question is matter of phraseology and not substance.

11. Carriers. — Whether motorbus passenger was injured at time of collision of motorbus with automobile held for jury.

12. Trial. — Where there is any substantial evidence on issue, question is for jury.

13. Appeal and Error. — Jury are triers of fact, and Court of Appeals cannot disturb verdict, although it may believe one witness in preference to greater number testifying for opposite party.

14. Automobiles; Carriers. — Concurrent negligence of motorbus and colliding automobile held proximate cause of injury to motorbus passenger.

Facts disclosed that the automobile turned out from behind some wagons to pass them, and that there was headon collision with motorbus, the evidence tending to prove that the motorbus driver was negligent in not promptly applying brakes, and that the brakes were defective.

15. Carriers. — Motorbus passenger who, in exercise of ordinary care, mistakenly jumped in face of impending collision caused by negligence of motorbus driver, held not guilty of contributory negligence.

16. Damages. — $10,000 held not excessive for injuries sustained by motorbus passenger which resulted in amputation of leg above knee.

17. Appeal and Error. — Party who offered instruction in practically same language as one given by court cannot complain of instruction given.

18. Trial. — Instruction that, if automobile suddenly came in front of motorbus, so that motorbus driver could not in exercise of ordinary care have stopped or checked his speed in time to avoid collision, passenger injured in collision could not recover, held properly refused, as not applicable to evidence.

19. Carriers. — Motorbus operator owes passenger highest degree of care, and, if operator created, or helped to create, by his negligence, an emergency, exercise of ordinary care thereafter will not relieve operator of liability to injured passenger.

20. Trial. — Instructions should submit only such issues of fact as to which there is conflict of evidence.

21. Trial. — Party cannot complain of refusal of requested instruction on contributory negligence where instruction given properly covered subject-matter.

22. Carriers. — Instruction submitting whether motorbus passenger was injured at time of collision of motorbus with automobile held proper.

Appeal from Christian Circuit Court.

R.W. KEENON and CHARLES FRANKLIN for appellant.

HUBBARD & HUBBARD, S.Y. TRIMBLE and SAMUEL M. ROSENSTEIN for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

This appeal presents for review a verdict of the jury for $10,500 in favor of the plaintiff for a personal injury he sustained in the collision of a bus, in which he was riding as a passenger, with an automobile traveling on the highway from the opposite direction. U.B. McGraw, against whom the judgment was rendered, by his trustee in bankruptcy, prosecutes the appeal.

On the 9th day of April, 1927, Ayers, a traveling salesman, boarded a bus owned and operated by U.B. McGraw from Nortonville, Ky., to Hopkinsville, Ky. A short distance from the village of Crofton, Ky., the bus and the car, driven by Mrs. Marquess, collided, and, in the language of McGraw, it was "just as square as you can hit." The weight of the bus without passengers was 6,300 pounds; with passengers, about 10,000 pounds. At the time of the accident it was occupied by 15 or 18 passengers. The car in which Mrs. Marquess was traveling was a Chevrolet. It was occupied by her and her daughter. At the point of the accident the road from shoulder to shoulder was 24 feet wide. The bus passed a wagon 300 or 400 yards before it reached the point where the accident happened. Three other wagons were on the highway, traveling on the same side of the highway, and going in the same direction of the first wagon. The wagon of Arthur Jones was in front, Jim Bennett next, 100 yards behind, Walter Thompson in his rear, and Arnold Thompson was driving the hindmost, or fourth, wagon, on the extreme right of the highway. On the wagon of Arnold Thompson was "a 16 foot all purpose frame"; those on the other wagons were 10 feet wide. Mrs. Marquess pulled up behind the wagon Arnold Thompson was driving, like she was going to stop, then pulled around. The collision occurred opposite the wagon of Arnold Thompson. McGraw described the accident thus:

"When I passed Crofton Lake, I passed the wagon just about the lake; then about 400 or 500 yards from there I passed another one; when I got up * * * about 100 yards this side of that cabin, I met two more wagons, I reckon they were about 50 or more feet apart; I was passing one, and as I got nearly opposite the first wagon, or the middle of these two last ones, this car ran from behind that wagon; I stuck my foot on the brakes to stop."

He was asked and answered in this language:

"Q. About how far were you from the car, when she came from behind the wagon? A. I judge about 50 or 60 feet maybe, I didn't notice particularly.

"Q. When the collision occurred how fast was your bus traveling? A. I was standing still.

"Q. How fast had you been going? A. Twenty or twenty-five miles.

"Q. You were fifty or sixty feet from her when she came around the wagon, how far did you travel after you saw her, before you stopped? A. It looked like about the length of the bus, the way the wheels skidded.

"Q. How long is the bus? A. Twenty feet."

Mr. Bryant, a passenger on the bus, was asked and answered these questions:

"Q. When you all climbed out of the bus on the right side, how close did you have to step to the ditch? A. We stepped on the bank of the ditch. The wagons had big frames on them, they were occupying at least one-half the road.

"Q. About how fast was the bus travelling at the time you saw the car coming from behind the wagon? A. 15 or 20 miles.

"Q. What was done toward stopping the car? A. I stopped it, I slapped my foot on McGraw's.

"Q. Did he put his foot on the brake? A. Yes sir, and I put my foot on his.

"Q. What effect did that have? A. It stopped the bus, about 1,000 pounds weight was on it."

This witness claims that at that time he weighed 320 pounds, and thus explains his statement of the weight on the brake at the time he stopped the bus. A majority of the witnesses claim that immediately before and at the time of the collision the bus was on the right side of the road, as close to the edge as possible. The testimony of the witnesses in behalf of McGraw exonerated him of all negligence in the operation of the bus, except that portion of the testimony of W.S. Bryant, wherein he claims that he stopped the bus. The road where the accident happened was level for a considerable distance before reaching the point of the accident. Witnesses for Ayers claim that the bus was on the left side or beyond the center of the road. Ayers claims that, on the appearance of the automobile of Mrs. Marquess, McGraw made no effort to stop his machine that he got up and asked him to stop it, taking hold of the back side of the door and remarked to McGraw, "For God's sake apply the brakes," and that at that time Bryant applied the brakes. He says McGraw seemed confused, and, instead of trying to stop, he got a little more speed, when Bryant helped him, and that the bus was on the left side, or beyond the center of the road. Bryant was making an effort to stop it, and, as the bus struck the automobile, "it seemed to knock it sideways," that he was thrown immediately from the bus, "striking the ground as the crash occurred," and dragged holding to "possibly the door," but was finally forced to turn it loose; that at the time the bus stopped it was "crosswise" the road. Mrs. Marquess explains her part in the transaction in these words:

"There were three wagons on the road. One was some distance ahead of the other two, and as they were away over on the right hand side of the road, I was going by the wagons and when I got even with the first one I saw the bus approaching, there was nothing for me to do but to put on my brakes, and I did."

She says that the bus made no attempt to stop, and was traveling near the middle of the road, and that she was over near the wagons, as close as she could get to them without rubbing them. The wagons were over on the right side of...