Moore v. Hart

• Decision Date: 26 October 1916
• Citation: 188 S.W. 861,171 Ky. 725
• Parties: MOORE v. HART.
• Court: Kentucky Court of Appeals

188 S.W. 861

171 Ky. 725

MOORE v. HART.

Court of Appeals of Kentucky.

October 26, 1916

Appeal from Circuit Court, Nelson County.

Action by W. O. Hart against Thomas S. Moore. Judgment for plaintiff, and defendant appeals, after failing to secure new trial. Reversed with directions to grant new trial.

Jno. S Kelley, R. C. Cherry, and Victor L. Kelley, all of Bardstown for appellant.

Nat. W Halstead and Osso W. Stanley, both of Bardstown, for appellee.

THOMAS J.

Appellee was the owner of a passenger automobile truck, and at the time he sustained the injuries for which he sues in this case he was traveling north from Bardstown to the Nelson County Fairgrounds, on the Louisville and Bardstown turnpike, and while passing the point where the Lancaster pike comes into the Louisville pike from the west, he claims that the appellant negligently and carelessly approached his automobile truck from the rear, and in passing it struck his machine, causing it to fall over into a ditch about 10 inches deep, running alongside the east edge of the pike upon which he was traveling, and causing same to careen and strike a post upon which was attached a mail box, which was located very near the ditch; that his right hand was caught between the side of the top of his machine and the post, causing his fingers and muscles to be bruised and crushed, and, as he claims, resulted in permanently injuring and almost completelv destroying that hand.

The negligence charged in the petition is that defendant negligently failed to have his automobile under control, and that he was operating same at a much greater rate of speed than was reasonable and proper, and more than 20 miles per hour, and at a high and dangerous rate of speed; that he did not give any warning or signal of any character as he approached the plaintiff, or before the alleged collision, and that he wrongfully drove his machine upon the right-hand side of the pike when he should have remained upon the left side. The impact is claimed to have been made with the right front wheel of defendant's machine against the left front wheel of the plaintiff's truck, or with some part of it at that point.

The answer consists of three paragraphs, the first being a general denial, including a denial of the collision itself, as well as the negligence complained of; the second is a plea of contributory negligence on behalf of the plaintiff, which contributory negligence, as therein specified, is that plaintiff was negligent in the position which he was occupying on his machine at the time, it being that he was standing on the rear steps leading to the entrance of his machine, with one hand holding to the right corner of the top of his machine, and the left hand holding to the left corner thereof, that plaintiff's machine was, because of its peculiar steering gear, hard and difficult to control, and that it was being operated at the time by an incompetent chauffeur. The third paragraph set up the fact that plaintiff's machine had not been registered, as required by subsection 2 of section 2739 of the Kentucky Statutes, nor had his chauffeur, who was at the time employed by him for compensation, been licensed, as required by subsections 19 and 20 of the same section, and that plaintiff had violated the provisions of subsection 24 of that section by employing an unlicensed chauffeur. A demurrer was filed to the third paragraph of the answer, and sustained by the court, to which an exception was reserved. The matters relied on in paragraphs 2 and 3 of the original answer were, in substance, incorporated into an amended answer, but all of its allegations with reference to plaintiff's chauffeur not being licensed, or his machine registered, were, upon motion of the plaintiff, stricken from the pleading, and exceptions reserved to this ruling of the court. A reply completed the pleadings, and upon trial before a jury the plaintiff was awarded a verdict of $2,500, upon which judgment was rendered. Failing to obtain a new trial, defendant prosecutes this appeal.

The motion for a new trial contains 14 objections to the judgment, but, as presented upon this appeal, the errors may be sifted down to the following: First, because of error of the court in declining to permit defendant to plead in bar of the action the failure of plaintiff to register his machine, or the failure of the chauffeur to be licensed; second, that the court erred in admitting evidence to be introduced offered by the plaintiff, and in refusing to admit evidence offered by the defendant; third, because of the failure of the court to properly instruct the jury; fourth, because of misconduct of plaintiff's counsel during his closing argument to the jury; and, fifth, because of misconduct of some of the jury during the progress of the trial, and before the rendition of the verdict. As briefly as possible we will consider these five points urged before us in the order mentioned. Before doing so it might be necessary to say that the proof for plaintiff shows that he was traveling with his machine on the right-hand side of the pike, with his right-hand wheels within about 12 inches of a small ditch, about 10 inches deep, on that side of the pike; that the defendant gave no signal with a horn, whistle, or other device as he approached and attempted to pass the plaintiff, and that he was operating his machine at a speed of some 25 to 35 miles per hour; that just north in front of plaintiff there were parties in vehicles coming, meeting him, who were traveling on the west side of the pike, or to the left of plaintiff; that defendant, in attempting to pass him and his machine at a point just to the rear of it, or about the rear, turned diagonally to the right, carrying him in the direction of plaintiff's machine, and that he struck some portion of it near the front on the left-hand side with some portion of defendant's machine near the front, on the right-hand side, causing the plaintiff's machine to immediately careen, or turn over, and strike the post located near the ditch. There were some eight or ten passengers in plaintiff's machine at the time.

Defendant's testimony showed that he was traveling at a rate of speed not exceeding 15 miles per hour, and that he passed the plaintiff some 250 feet south of the point where the Lancaster pike enters into the automobile pike, and that far south of the point where the Lancaster pike enters into the Louisville pike, and that far south of the point where plaintiff and his witnesses claim the collision occurred; that he did not at that place, or at the place where plaintiff claims that he did, or at any other place, collide with the plaintiff's machine. He furthermore shows, by some two or three witnesses besides himself, that after he arrived at the fairgrounds, and some 30 minutes or more thereafter, having heard of the pretended collision, and that he was accused of producing it, they examined defendant's machine, and found no scars thereon, or any indications of any character of collision.

Returning now to the grounds urged for a reversal: It is vigorously insisted that the plaintiff was operating a machine on the public highway when it was not registered, and had in his employ an unlicensed chauffeur, both of which were in open violation of the statutory law of this state, and that these violations made him a trespasser upon the highway, and himself and his machine, in the language of defendant's counsel, "under the ban of the law" continuously while on the highway, and that these violations constituted negligence per se on his part, depriving him of any right of action for injury to himself or to his machine, and which violations constitute a complete defense to this suit. Strange as it may seem, we are furnished with authority for this cruel and almost savage doctrine. It seems that the courts of Massachusetts give to such violations the force and effect contended for by the defendant in this case, and we are referred to the case of Chase v. N.Y. Central R. R. Co., 208 Mass. 137, 94 N.E. 377, as sustaining the doctrine contended for. In that case the plaintiff was riding in an unregistered automobile, which collided with a train of the defendant, producing the injuries sued for, and a recovery was denied because the machine was unregistered. The court, in disposing of the case, to the chagrin of the plaintiff and his counsel, says:

"Under the decisions, the operation of the unregistered automobile is deemed to be unlawful in every feature and aspect of it. Everything in the conduct of the operator that enters into the propulsion of the vehicle is under the ban of the law. In going along the way and entering upon the crossing the machine is an outlaw. The operator, in running it there and thus bringing it into collision with the locomotive engine, is guilty of conduct which is permeated in every part by his disobedience of the law, and which directly contributes to the injury by bringing the machine into collision with the engine. He is within the words of the statute. He is in no better condition to recover than a person would be who was violating the law by walking on the track of a railroad, and was struck by an engine when he had reached the crossing of a highway."

The same doctrine seems to be adhered to by that court in the case of Dudley v. Northampton St. Ry. Co., 202 Mass 443, 89 N.E. 25, 23 L.R.A. (N. S.) 561; Dean v. Boston Elevated R. R. Co., 217 Mass. 495, 105 N.E. 616, it being held in the last-named case, in substance, that all occupants of the unregistered machine were trespassers upon the highway, and are entitled to no consideration from other travelers except to be protected from reckless or wanton injury. We have been unable to find any other court going to this...