Newton's Adm'r v. Stengel
| Decision Date | 06 June 1944 |
| Parties | NEWTON'S ADM'R v. STENGEL et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division; Wm. H. Field, Judge.
Action by Harry Lowe, as administrator of the estate of Charles B Newton, deceased, against John V. Stengel and another to recover damages for deceased's death as the result of named defendant's truck turning over while deceased was riding therein. Judgment for defendants, and plaintiff appeals.
Affirmed.
Morris Garlove & Goldsmith and S. Arnold Lynch, all of Louisville for appellant.
Woodward, Dawson & Hobson, of Louisville, for appellees.
The appellee, John V. Stengel, owns a number of trucks, some of which he leases to the City of Louisville. On March 20, 1943, the other appellee, Charles Bowman, was driving one of Stengel's trucks, which was being used in hauling city garbage at the time Charles B. Newton was killed. Newton and William Fleck, the other occupant of the truck, were city employees. During the day Bowman, Newton and Fleck drank some wine and three buckets of beer. After the load of garbage had been weighed at the Ohio Street scales, Bowman started toward the River Road, which was about a block away. The truck turned over as he attempted to turn in the River Road and Newton was killed. At the conclusion of the appellant's evidence a peremptory instruction was given in favor of Stengel on the ground that Bowman was not his agent in the operation of the truck at the time of the accident, and at the conclusion of all the evidence a directed verdict was given in favor of Bowman on the ground that Newton was guilty of contributory negligence as a matter of law and assumed the risk of injury in riding in the truck with Bowman when he knew he was drunk. The appellant contends both of these rulings were in error.
Having reached the conclusion the evidence warranted the instruction that Newton was guilty of contributory negligence as a matter of law, and assumed the risk of injury in riding in the truck which Bowman was driving when he knew he was drunk, we shall confine our consideration of the case to that question.
Bowman admitted he was drinking and said after they left Preston and Caldwell Streets, 'We were about drunk.' Police officers, who were at the scene of the accident shortly after it occurred, testified Bowman appeared to be drunk. There was other evidence to the same effect. Both parties place much emphasis upon the evidence of Fleck. A few days after the accident he signed a statement which, on cross examination, he said he swore to, wherein he said he, Bowman and Newton were drinking during the day; they had not had anything to drink for about an hour before the accident happened; when they reached the scales Bowman got out...
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Louisville Taxicab & Transfer Co. v. Barr
... ... Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021; ... Newton's Adm'r v. Stengel, 297 Ky. 722, 181 ... S.W.2d 251; Spivey's Adm'r v. Hackworth, 304 ... Ky. 141, 200 S.W.2d 131 ... ...
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Louisville Taxicab & Transfer Co. v. Barr
...S. W. 2d 478; Whitney v. Penick, 281 Ky. 474, 136 S.W. 2d 570; Sutherland v. Davis, 286 Ky. 743, 151 S.W. 2d 1021; Newton's Adm'r v. Stengel, 297 Ky. 722, 181 S. W. 2d 251; Spivey's Adm'r v. Hackworth, 304 Ky. 141, 200 S.W. 2d 131. These cases also show that the same rule applies where a gu......
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Spivey's Adm'R v. Hackworth
...S.W. 2d 478; Whitney v. Penick, 281 Ky. 474, 136 S.W. 2d 570; Sutherland v. Davis, 286 Ky. 743, 151 S.W. 2d 1021; Newton's Adm'r v. Stengel, 297 Ky. 722, 181 S.W. 2d 251. Since the court should have directed a verdict like that which the jury returned on submission of the issues, even thoug......
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Spivey's Adm'r v. Hackworth
... ... Davis, 286 Ky. 743, 151 S.W.2d 1021; ... [200 S.W.2d 133] Newton's Adm'r v. Stengel, ... 297 Ky. 722, 181 S.W.2d 251 ... Since ... the court should have directed ... ...