Miller v. Weck

• Decision Date: 20 January 1920
• Parties: MILLER v. WECK.
• Court: Kentucky Court of Appeals

217 S.W. 904

186 Ky. 552

MILLER v. WECK.

Court of Appeals of Kentucky.

January 20, 1920

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division,

Action by Louis Weck against Zachary T. Miller and another. From judgment for plaintiff, the named defendant appeals. Affirmed.

John P Haswell, Jr., of Louisville, for appellant.

Elmer C. Underwood, of Louisville, for appellee.

SETTLE J.

On the trial of this action brought by the appellee, Louis Weck, in the court below against L. D. Miller, W. S. Hess and the appellant, Zachary T. Miller, a verdict was returned by the jury, awarding him damages to the amount of $400 against Hess and $800 against the appellant, Zachary T. Miller, for bodily injuries caused by the collision of two automobiles, one owned by Hess and the other by Zachary T. Miller, which collision and appellee's consequent injuries directly resulted, as alleged in the petition, from the joint and concurrent negligence of those in charge of the automobile that of Hess being at the time operated by him, and that of Zachary T. Miller by his son and codefendant, L. D. Miller, an infant 18 years of age, who, though before the court by service of summons, was dismissed as a defendant to the action by an order of the court entered on appellee's motion. Hess seems to have acquiesced in the judgment. Zachary T. Miller, however, filed motion and grounds for a new trial, but the motion was overruled, complaining of which he prosecutes this appeal from the judgment in so far as it affects him.

The collision between the automobiles occurred on the outskirts of the city of Louisville at the intersection of Eastern Parkway, a boulevard connecting two of the city parks, and the Preston street road. Appellee, who was then a park guard in the employ of the city of Louisville, in the performance of his duties, was standing on the grassplot in the park near the intersection of the two roadways. While so stationed the two automobiles rapidly approaching the intersection came into view, that of appellant on the Eastern Parkway and that of Hess on the Preston Street road. The Hess car was a light "Ford roadster," the Miller car a "big gray Stutz." According to the testimony of the appellee the Miller car was going at a speed of between 25 and 30 miles an hour, and the Hess car at practically the same rate of speed. Although each car was in plain view of the occupants of the other for at least 50 yards before reaching the intersection neither gave any signals or attempted to slacken its speed, but both seemed bent on beating one another over the crossing; consequently, upon reaching the intersection, they collided with such force that the light Ford car was deflected from its course by its impact with the heavier Stutz car and driven from the roadway in an oblique course onto the grassplot and against the appellee, who was knocked down, run over, and dragged by it a distance of 64 feet before it could be stopped. So great was the speed of the Miller car that it ran after the collision a distance of 50 or 60 feet before it could be stopped.

Appellee's testimony was in all material particulars corroborated by that of the defendant, W. S. Hess, R. E. Kelly, who was riding in his car with him, and by George Drees, who resides near the intersection of East Parkway and the Preston Street road and saw the collision in question. On the other hand, J. E. McCammon, who with one Thomas, a regimental sergeant major, and a young lady, was riding with appellant, Z. T. Miller's son, in the Miller car at the time of the collision, testified in behalf of appellant to the effect that the speed of the Hess car was greater than that of the Miller car, and that the collision of the cars was caused by the failure of Hess to slacken the speed of his car in order to give the Miller car the right of way at the intersection of the roads. In addition, appellant was permitted to read to the jury, as the deposition of his absent son, L. D. Miller, his own affidavit, containing what it was claimed the son would, if present, have testified regarding the collision, which was corroborative of the testimony furnished by McCammon. It is apparent from what has been said of the evidence that it was conflicting, but we think it authorized the recovery by appellee of the damages awarded him by the verdict of the jury, for, considered as a whole, it conduced to prove that the collision of the automobiles, resulting in the injuries sustained by him, was caused by the joint negligence of Hess and L. D. Miller. And as the negligence of each concurred with that of the other in causing appellee's injuries, it would be useless for us to speculate as to whether one of them was more or less negligent than the other. As said in Probst v. Hinesley, 133 Ky. 64, 117 S.W. 389:

"The rule is now well settled in this state that, while several may be guilty of several and distinct negligent acts, yet, if their concurrent effect is to produce an estimable injury, they are all liable therefor. The comparative degree in the

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