McGraw v. Ayers

• Decision Date: 14 March 1933
• Citation: 58 S.W.2d 378,248 Ky. 166
• Parties: McGRAW et al. v. AYERS.
• Court: Kentucky Court of Appeals

58 S.W.2d 378

248 Ky. 166

McGRAW et al. v. AYERS.

Court of Appeals of Kentucky

March 14, 1933

Appeal from Circuit Court, Christian County.

Suit by Charles T. Ayers against U. B. McGraw and another. From judgment for plaintiff, U. B. McGraw's trustee in bankruptcy appeals.

Affirmed.

R. W Keenon, of Lexington, and Charles Franklin, of Madisonville for appellant.

Hubbard & Hubbard, of Louisville, S. Y. Trimble, of Hopkinsville, and Samuel M. Rosenstein, of Frankfort, for appellee.

RICHARDSON Justice.

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 travelling? 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 the road as far as they could get; that McGraw was nearer her right-hand side than he was his right-hand side, when the machines struck. She claims that she had roadway in which to pass between the wagon and the bus except for the bus being turned into the middle of the road. The impact knocked her completely off the road to the left. Witnesses for Ayers who were traveling on the highway in an automobile immediately near the point where the accident occurred claim that when they arrived at the scene of the accident, the bus was in such position on the highway that a vehicle could not pass it on either side until it was removed, and that it was removed to permit the passage of their own and other vehicles.

Without an elaborate detail of the evidence, the foregoing résumé is sufficient to show a direct, positive conflict of the testimony in behalf of the parties, requiring the submission of the issues to the jury. Duff v. May, 245 Ky. 709, 54 S.W.2d 4. We are not authorized to interfere with the verdict on such conflicting evidence because of the preponderance of the evidence, unless the record indicates the jury was prevented from properly considering the case. Johnson v. Taylor, 245 Ky. 247, 53 S.W.2d 550, and cases cited.

On the cross-examination of a witness in behalf of McGraw, he was asked and answered:

"Q. How fast was that bus going at the time it turned over? A. About 15 miles.

Q. Did it go over 15? A. No sir.

Q. That is as fast as McGraw drives? A. Yes sir."

McGraw's trustee objected to the last question. His objection was overruled. He saved an exception. The same witness was asked this question: "Q. Did you see his bus come through there every day? A. Every day it was not torn up and had had a wreck." The objection to this question and answer was sustained. A witness for McGraw was asked: "Did you ever see him drive that slowly before?" The question was objected to. The objection was sustained and the question was not answered. This question was propounded on cross-examination of a witness: "Q. Did this man get out of the car before the collision or was he knocked out at the time of the collision?" It was objected to, the objection sustained, and the question was not answered. It is argued by McGraw's trustee that the propounding of these questions to the witnesses, when considered in connection with the argument of the attorney for Ayers, was very prejudicial, although his objections thereto were sustained.

The argument of counsel of which complaint is made is in this language: "'McGraw did not say his bus was in good shape and his brakes were good, and his brakes must have been bad or they would have stopped the bus sooner.' To the making of said statement the defendant at the time objected and moved the court to admonish the jury not to consider the same, for the reason that there was no evidence or pleading to justify the remark. Which motion the court overruled. To which ruling of the court defendant at the time objected and excepted and still objects and excepts. And again during the argument to the jury said Trimble used the following language: 'You know how fast a bus driven by McGraw goes and these boys on the wagon knew it, and when they saw him coming this time they got over in the ditch to keep from being hit by him.' To which argument defendant objected and the court admonished the jury not to consider said remark. Defendant then moved the court to set aside the swearing of the jury, because the statement was prejudicial to the defendant, which...