O'Neil & Hearn v. Bray's Adm'X
| Decision Date | 28 January 1936 |
| Citation | 262 Ky. 377 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | O'Neil & Hearne v. Bray's Adm'x. |
2. Constitutional Law. — Court may not read into statute something that is not there.
3. Automobiles. — Statute regulating speed, in addition to being punitive, is rule of evidence, and is, in effect, declaration of weight which courts shall give to evidence (Ky. Stats., sec. 2739g-51).
4. Automobiles. — Circumstances under which motorist was driving control matter of reasonableness of speed in measuring question of ordinary care (Ky. Stats., sec. 2739g-51).
5. Automobiles. — Whether speed of private ambulance which skidded into automobile parked along highway was reasonable considering condition of road, density of traffic, and many parked cars on both sides of road, or whether it constituted negligence and was proximate cause of accident, held for jury (Ky. Stats., secs. 2739g-38, 2739g-51).
6. Automobiles. — Skidding of automobile on slippery road does not of itself prove negligence so as to render res ipsa loquitur doctrine applicable.
7. Automobiles. — In action for injuries sustained when ambulance skidded into automobile parked along highway, evidence of skidding held circumstance to be considered upon allegation of negligence in operation of ambulance at unreasonable speed.
8. Automobiles. — Whether passenger in automobile parked along highway into which ambulance skidded was contributorily negligent in choosing to remain in automobile after warning that it should be moved because ambulance was coming held for jury.
9. Automobiles. — In action for injuries sustained when ambulance skidded into automobile parked on hill along highway, evidence of other cars skidding on hill held admissible to show dangerous character of highway, where shown that conditions and management of other cars were the same.
10. Appeal and Error. — In action by administratrix for personal injuries sustained by decedent, refusal of evidence that about ten minutes after accident while on way to doctor's office decedent said he was not hurt held not reversible error, although testimony was admissible as statement against interest.
11. Witnesses. — Trial judge properly exercised his discretion in refusing to testify when called by defendants during trial, where his testimony would have been cumulative and it was not shown that defendants did not know when case went to trial that judge would be called (Civil Code of Practice, sec. 603).
12. Automobiles. — In action for injuries sustained when ambulance skidded into automobile parked along highway, instruction that ambulance driver should have operated ambulance at reasonable speed not exceeding 40 miles an hour held erroneous, where petition alleged special negligence of excessive speed in violation of statute (Ky. Stats., secs. 2739g-38, 2739g-51).
13. Negligence. — Question as to defendant's negligence in particulars in which no negligence was alleged should not be submitted.
14. Damages. — In personal injury action, instruction authorizing recovery for permanent impairment of earning power held not error, notwithstanding death of injured party from another cause seven weeks after accident.
While "permanent" connotes a substantial period of time when used in contra-distinction of "temporary," in relation to permanent impairment of earning power from injuries, it imports injuries which will incapacitate until death whenever and however it may occur.
15. Damages. — In personal injury action, failure to instruct that allowance for damages for impairment of earning power should be from time when an award for time lost from labor ended held error.
Appeal from Whitney Circuit Court.
TYE, SILER, GILLIS & SILER for appellants.
L.O. SILER and R.S. ROSE for appellee.
OPINION OF THE COURT BY STANLEY, COMMISSIONER.Reversing.
When a bus was wrecked on a curve at the foot of a long steep hill just north of Williamsburg on May 15, 1934, and the passengers were injured, two fatally, a crowd gathered, and automobiles lined up on both sides of the hill for some distance back. Johnny Bray and Charlie Hood were sitting in Hood's car parked on the west side of the road, headed down hill. The road was of loose rock and oil, and was quite slippery because of the rain. An ambulance belonging to the appellants had been called to the scene from Corbin. It skidded, turned almost end for end, and struck the rear of the parked automobile, knocking it 15 or 20 feet, but did not turn it over. While it appeared at the time that Bray was not injured, or, if so, only slightly, it subsequently developed that he had been hurt. About two months later, Bray was killed by unknown persons in a tourist camp. His wife as administratrix brought this suit against the appellants, claiming damages for his personal injuries, expenses of medical treatment and lost time. A judgment for $2,000 was recovered.
The negligence specifically alleged was that the defendants' employee drove the ambulance "at an exceedingly high and dangerous rate of speed of more than 50 miles an hour." Plaintiff's evidence was that the ambulance was running 40 or 45 miles an hour at the top of the hill, 150 or 200 feet away, but slowed down before reaching the Hood car, which was wholly off the traveled way. The driver stated he had come almost to a stop at the top of the hill because of a wreck up there. As he turned the curve, he saw the parked automobiles on both sides of the road, and was running 25 or 30 miles an hour at the point of collision. He testified the Hood car was double-parked and was on the hard surface, but there was room to pass. Another automobile coming up the hill required him to apply his brakes, which caused the skidding. One who was directing traffic on the hill told Hood a few moments before the accident to move his car and clear the right of way as the ambulance was coming. He and other witnesses say the car was off the traveled part of the road, and that the speed of the ambulance was 15 to 20 miles an hour. All agree that the road was very slick.
The appellants submit that the statute which fixes the reasonable speed limits is not applicable to ambulances; hence that no prima facie negligence was proven by the evidence that their ambulance was running over 40 miles an hour. This argument is premised upon paragraph (9) of section 2739g-51, which excludes from the provisions as to speed "vehicles owned and operated by the fire, police or hospital departments of any municipality." Since neither of the municipalities of Williamsburg or Corbin had hospital ambulances, it is argued, as a logical interpretation of the statute, that the exemptions should be extended to private ambulances engaged in the same service of answering emergency calls. Reliance is had upon Vandell v. Sanders, 85 N.H. 143, 155 A. 193, 80 A.L.R. 550, where it was held that a city fireman answering a call in his private automobile came within the spirit of a law exempting municipal fire apparatus from the ordinary speed regulations. The court was of opinion that the same legislative purpose to facilitate the early arrival of firemen at the scene of a fire which found expression in the requirement that such apparatus be given the right of way was apparent, and that the exemption should be construed in such a way as to further the purposes and policies of the act. The facts of the cases are different. There the fireman was engaged in performing his duty within the city, and in doing so was using his own automobile in the service of the municipality, and therefore, came within the specific exemption. This ambulance was not being used for or within the municipality. We are not authorized to read into the statute something that is not there. Huddy, Automobile Law, vol. 3, 4, p. 319. It does provide such a car has the right of way, section 2739g-38, but only when it is being operated "with due regard for the safety of the public."
The argument is that the very use of an ambulance, as in the present instance of...
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