O'Neil & Hearne v. Bray's Adm'x

• Decision Date: 28 January 1936
• Citation: 90 S.W.2d 353,262 Ky. 377
• Parties: O'NEIL & HEARNE v. BRAY'S ADM'X.
• Court: Kentucky Court of Appeals

90 S.W.2d 353

262 Ky. 377

O'NEIL & HEARNE v. BRAY'S ADM'X.

Court of Appeals of Kentucky

January 28, 1936

Appeal from Circuit Court, Whitney County.

Action by Johnny Bray's administratrix against O'Neil &amp Hearne. Judgment for plaintiff, and defendants appeal.

Reversed.

Tye Siler, Gillis & Siler, of Williamsburg, for appellants.

L. O Siler and R. S. Rose, both of Williamsburg, for appellee.

STANLEY Commissioner.

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 hastening to the relief of the fatally injured passengers, demands the greatest possible speed, and justifies the recognition of a right to exceed the speed limits. Perhaps so. But there can be no justification of negligent driving or of any act imperiling the life and limb of others on the way. The exemption of municipal machines cannot be said to have that effect. Huddy, vol. 3, 4, p. 320. The statute regulating speed in addition to being punitive is a rule of evidence, and is, in effect, a declaration of the weight which the courts shall give to the evidence. Utilities Appliance Co. v. Toon's Adm'r, 241 Ky. 823, 45 S.W.2d 478; Huddy, Automobile Law, vol. 3, 4, p. 324. It simply declares that speed in excess of the rates stipulated shall be regarded prima facie evidence of negligence. As has been previously stated, one may drive faster and not be negligent or may drive slower and be negligent. It is the circumstances that control the matter of reasonableness of speed in measuring the question of ordinary care. Utilities Appliance Co. v. Toon's Adm'r, supra; Diamond Taxicab Co. v. McDaniel, 258 Ky. 478, 80 S.W.2d 562; Hunt v. Whitlock's Adm'r, 259 Ky. 286, 82 S.W.2d 364. Even though the speed of the machine was less than 40 miles an hour just at the time of the collision, it was for the jury to say whether, under the circumstances, considering the condition of the road, the density of traffic, and the many parked cars on both sides, the speed was reasonable. The speed of 40 miles an hour is recognized as reasonable only "on a straightaway, unobstructed highway." Section 2739g-51, par. (3) Kentucky Statutes.

It may be said, quite pertinently, that such evidence is to be regarded as is that of the skidding of the ambulance. The mere fact that an automobile skids on a slippery road does not of itself prove negligence so as to render the res ipsa loquitur doctrine...