Ortwein v. Droste

• Decision Date: 15 March 1921
• Parties: ORTWEIN v. DROSTE.
• Court: Kentucky Court of Appeals

228 S.W. 1028

191 Ky. 17

ORTWEIN v. DROSTE.

Court of Appeals of Kentucky.

March 15, 1921

Appeal from Circuit Court, Kenton County.

Action by Elenora Ortwein against Fred Droste. From judgment for defendant, plaintiff appeals. Affirmed.

W. A Byrne, of Covington, for appellant.

T. J Edmonds, of Covington, and Mackoy & Mackoy, of Cincinnati Ohio, for appellee.

SAMPSON J.

As Miss Elenora Ortwein, 25, was starting to her place of employment in Covington about 6 o'clock on February 25, 1919, she was invited to ride in the automobile of appellee, Droste, and informed that he was driving in the direction she was traveling. She accepted the invitation, and, entering the car took a seat beside Droste, who was driving, and between Droste and one Kinsler, three on one seat. It was a dark rainy morning and the streets were slick. The car had not proceeded very far before it ran into an iron telephone pole standing inside the curb, and the car was demolished, and its occupants, including Miss Ortwein, badly injured. She brought this action against Droste, the driver and owner of the car, for $30,000 damages, alleging that her injuries were the direct result of the reckless and fast driving of the defendant. The case was submitted to a jury under instructions of which no complaint was made, and a verdict for the defendant, Droste, returned. Miss Ortwein appeals.

That she suffered a terrible injury is not denied. For some time after the accident she was unconscious, and at the trial, which took place several months later, she was paralyzed in her right side, and had but little use of her vocal organs, and her mind and memory were bad. The injury was chiefly to her head. Owing to her defect in speech and loss of memory occasioned by the accident her testimony is of little or no value. For her it is contended that appellee, Droste, was driving at a very rapid rate along a street, which, owing to the rain, was exceedingly slick, and at a point where there was a long steep incline, with which he was entirely familiar, having passed over it in a machine several times each day for many months before the accident, and which he knew was dangerous for fast driving. There is no evidence except that given by appellee, Droste, as to how the machine came to strike the iron post, but one witness for the plaintiff testified that the car was running very fast, and suddenly "swerved" across the street and ran against the post, but he did not know the cause. Droste related the circumstances in the following way:

"I left home about 6:30 that morning, and it was raining pretty heavy. I saw the young lady going to work with an umbrella. I was starting to go to town to take Kinsler home; I had a slice of ham and some country eggs I was going to give him. I asked the young lady where she was going, and she said to Eleventh and Madison. I said 'Ride in the car if you want to,' so she wouldn't get wet. Going down the hill I got in the car track, and the car commenced skidding, and the car turned clear around and hit a pole, the door flew open, and the car turned clear around. The machine

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