Meriweather's Adm'x v. Pickering

• Decision Date: 29 April 1938
• Citation: 116 S.W.2d 670,273 Ky. 367
• Parties: MERIWEATHER'S ADM'X v. PICKERING.
• Court: Kentucky Court of Appeals

116 S.W.2d 670

273 Ky. 367

MERIWEATHER'S ADM'X v. PICKERING.

Court of Appeals of Kentucky

April 29, 1938

Appeal from Circuit Court, Caldwell County.

Action by Mary Meriweather, administratrix, etc., of Tom Meriweather, deceased, against William C. Pickering, trading and doing business as the Merchants Service Line for the death of the plaintiff intestate who was killed in a collision between trucks. Judgment for defendant, and plaintiff appeals.

Reversed and remanded, with directions.

Frederick Olszweski, of Princeton, for appellant.

S.D Hodge, of Princeton, for appellee.

PERRY Justice.

This appeal questions the propriety of the trial court's ruling and judgment, in sustaining the motion of defendant (here appellee) for a peremptory instruction, and thereupon dismissing petition of plaintiff (here appellant) with costs.

A statement of the facts of the case, so far as pertinent to the determination of the question here presented, is that Tom Meriweather, an old colored man, living at Dawson Springs Ky. and whose occupation was that of collecting and selling rags and old iron, had contracted with the appellee, William G. Pickering, who operated a trucking business out of Princeton under the name of Merchants Service Line, to transport for him a consignment of rags and old iron from Dawson Springs to Hopkinsville for its sale there; that, pursuant to such arrangement, the appellee, Pickering, sent his truck (a one and one-half ton Chevrolet) in charge of his employee and truckman, Virgil Francis, to pick up Meriweather's rags and iron for delivery to Hopkinsville; that, when doing this Francis invited Meriweather to get into the cab of the truck with him and his wife, who was then with him, and accompany them, while carrying Meriweather's consignment of freight to Hopkinsville.

The evidence is that upon thus leaving Dawson Springs over United States highway 62 (extending north eastwardly towards Earlington) they had reached a point thereon some 3 miles from Dawson Springs, where the road very sharply curved, when Francis suddenly saw, some 50 feet ahead of him, a fast approaching truck, which he judged (but was not positive) was being driven on his (Francis') side of the road, when, in order to avoid a head-on collision with it, he believes, but cannot say "it was done so quick," that he cut over to his left. Francis states that, when he suddenly pulled his truck to the left, the driver of the other truck at the same time also served his truck to his right, thereby causing a collision between them on Francis' left side of the road, when the right front fender of Francis' truck hit the left front fender of the approaching truck, causing them to both serve and nose into the bank at the left of the road, each truck standing parallel with the other, with their rear ends extending back over the middle of the road. Francis also testified that as he rounded this sharp curve he was driving his truck at the rate of 35 miles an hour and that it was a rainy, dark day.

The impact of this collision between the trucks resulted in throwing Meriweather, who was sitting on the right side of the cab, practically from it, badly injuring him.

Francis, the appellee's truckman, when testifying upon the trial of this case for the plaintiff, the administratrix of Meriweather, whose death shortly followed his injuries sustained in the collision, stated that Mr. Pickering, his employer, had, when instructing him to go by Meriweather's and pick up his rags and iron for shipment to Hopkinsville, also instructed him to take Tom Meriweather along, as Tom was to see after selling them there, when he (the driver of the truck) was to collect from Tom 20 cents a hundred for the rags and 10 cents a hundred for the iron.

However, his employer, Mr. Pickering, when testifying, very stoutly denied that he gave Francis any such instructions, but, on the other hand, had instructed him, as he had every driver, that he was to carry no passengers and do no drinking on the job; that he had never instructed Francis to transport any passengers and knew nothing of Tom Meriweather's having ridden in his truck upon this occasion until he was called by the owner of the other truck, Mr. Simpkins, of Madisonville, and notified of the collision.

It further appears that the driver of the appellee's truck, Francis, after testifying as above set out for the plaintiff administratrix, was upon his cross-examination handed a written statement given by him, purporting to detail the facts and circumstances of this collision when testifying in a suit growing out of it between his employer, Pickering, and the owner of the other truck involved in it, wherein he stated that the collision was due to the fault of the driver of the other or Simpkins' truck; that it had not rained that morning after the left Dawson Springs; that as he had started over the hill he had let his foot off the gas, as he usually did when going around a curve; that as he started around it he saw the other truck coming but that it was so close he didn't have time to stop; that it was on his (Francis') right side of the road (the other driver's left); that the other driver made no attempt to pull over, so he cut short and tried to miss him and would have hit him center if he hadn't; that he (the other driver) "hit kinder on the right side of my truck's right headlight; *** after they hit, they came together and went across the road into the ditch. *** The colored man was hanging out of the cab by his feet. I judge I was going between twenty-five to thirty-five miles an hour when I went into the curve. *** I consider it was the other truck driver's fault."

The introduction of this statement was objected to, but the objection was overruled, with the admonition given the jury that it was only allowed to be put in evidence for the purpose of contradicting the witness, if it did, and for no other purpose.

This suit was brought by the appellant, Mary Meriweather, as administratrix, etc., of Tom Meriweather, after her due appointment and qualification as such following her husband's death, as due to the injuries sustained in this accident, against the owners of the trucks, Pickering and Simpkins, and also the drivers of the two trucks involved in the collision.

However, all the defendants have passed out of the case, so far as this appeal is concerned except the appellee, Pickering, against whom alone the appellant, is prosecuting this appeal upon the grounds that the court erred in sustaining appellee's motion for a directed verdict and in dismissing her petition.

Therefore our inquiry here involves but the one question of whether or not there was any...