E.P. Barnes & Bro. v. Eastin

• Decision Date: 09 November 1920
• Citation: 190 Ky. 392,227 S.W. 578
• Parties: E. P. BARNES & BRO. v. EASTIN.
• Court: Kentucky Court of Appeals

227 S.W. 578

190 Ky. 392

E. P. BARNES & BRO. v. EASTIN.

Court of Appeals of Kentucky.

November 9, 1920

Rehearing Denied Feb. 22, 1921.

Appeal from Circuit Court, Ohio County.

Action by R. B. Eastin, administrator of the estate of May Eastin deceased, against E. P. Barnes & Bro. Judgment for plaintiff and defendant appeals. Affirmed.

Barnes & Smith and J. S. Glenn, all of Hartford, for appellant.

Heavrin & Martin, of Hartford, for appellee.

SAMPSON J.

May Eastin, 15 years old, lost her life in an automobile collision while she was riding as a guest of the driver, and her father, as administrator, brought this suit to recover damages for her death. This appeal is prosecuted by Barnes Bros., of Beaver Dam, to reverse a judgment for $4,000 entered upon a verdict for that amount in favor of the administrator.

She was a visitor in the vicinity of Beaver Dam in August, 1918, and met Dorris Martin and wife, who invited her to take a ride with them in an automobile which Martin was driving. She accepted, and the three, seated on the front seat of the car started in the direction of Hartford, only a few miles away. The weather was hot and dry, and it was late in the afternoon. From the evidence it appears that Martin was driving rather fast, and when he came near the place of the accident some of the witnesses say he was going 30 to 40 miles per hour. The road runs over a small rise or hill, and just as the car in which May Eastin was riding was approaching the summit of this rise a car driven by a young man named Wilson came suddenly down the hill, passing the Martin car and casting up a great cloud of dust so that the occupants of the Martin car could not see the road or even one another, whereupon Martin immediately put on both the service and emergency brakes in an effort to stop the car. While this was being done the car ran over the crest of the hill and was on the downward slope some 150 or 200 feet from the point at which the Wilson car passed Martin. The Martin car was on the right-hand side of the road. Just after the car had passed the top of the hill and was starting down the slope on the other side, a truck owned by appellants, Barnes Bros., and driven by their chauffeur, Oldham, ran into and against the front end of the Martin car with such force that the impact threw Martin, wife, and Miss Eastin forward against the glass wind shield, cutting the jugular vein and windpipe of Miss Eastin, from which injury she immediately thereafter died.

The public road along which they were traveling was about 26 feet wide. About 9 feet of the right-hand side of the road as one travels from Beaver Dam to Hartford is macadamized, while the balance of the road, about 17 feet, is dirt. Martin in the operation of the automobile was obeying the law of the road by keeping to the right, and at the time of the collision his car was on the macadam road where it had a right to be. It appears that the Barnes truck was attempting to pass the Wilson car just in front of it, and in order to do so turned towards the left side of the road onto the macadam in violation of the rules of the road. The dust was so dense that the driver, Oldham, could not see the road or approaching car. All the witnesses testify that the dust obscured everything, and neither of the drivers were aware of the approach of the other car. No warning signals were given by either car.

The petition makes the following averments of negligence:

"On the 16th day of August, 1918, while the said decedent, May Eastin, was traveling on the Hartford and Beaver Dam public highway, in Ohio county, Ky. in an automobile, and while exercising ordinary care for her own safety, the said E. P. Barnes & Bro., by its agent and servant in charge and control of one of its said automobile trucks or cars, carelessly and negligently drove said automobile truck or car into and against the car in which the said decedent was riding, and said decedent was thereby by impact of said collision thrown against the wind shield of said car in which she was riding, thereby severing her windpipe and jugular vein, which resulted in her death in a few minutes; that said agent and chauffeur in charge of said defendant's car or truck and operating said car or truck was incompetent, unqualified, and unlicensed, which facts were all known to the defendants; that said chauffeur or agent of said defendants was operating said car in violation of law on the public highway; * * * the collision heretofore referred to occurred at a curve and on a hill on said public highway, and that the said chauffeur operating said defendant's car or truck could not observe the road 300 feet in front of him, and that at the time said defendant, by its agent or servant in charge of and operating said car or truck, was driving same in a grossly negligent and careless manner and at an excessive high rate of speed and without giving any warning or signal of any kind of the approach of said car or truck, and came suddenly and unexpectedly upon said car in which said decedent, May Eastin, was riding without any notice or warning whatever to said decedent or the driver of the car in which the decedent was riding, and ran into and collided with said car without giving the occupants or the driver of same any chance or opportunity to avoid a collision with said car or truck." The negligence relied on in brief of counsel for appellee is stated as follows:

"First. Negligence of appellants' chauffeur in driving the car at the time and place complained of at an unreasonable and unnecessary rate of speed.

Second. Negligence of appellants' chauffeur in running the car on the left-hand side of the highway, in the direction in which he was going, up a hill, on a curve, in a cloud of dust, when he could not see objects in front of him, without giving any warning of his approach.

Third. Negligence of the chauffeur of appellants' car in failing to give any signal of his approach to the summit of the hill.

Fourth. Negligence of the chauffeur of appellants' car in failing to turn to the right of the center of the road in attempting to pass the car driven by Dorris Martin, in which appellee's decedent was riding."

The answer traversed the allegations of negligence contained in the petition and affirmatively pleads contributory negligence.

In their brief counsel for appellants assert the following 14 reasons why the judgment should be reversed:

(1) It was an unavoidable accident on the part of Oldham, the driver of appellants' car, and of negligence of Martin the driver of car in which decedent was riding.

(2) Oldham, appellant's driver, was not negligent at the time.

(3) It was error to reject the testimony of Oldham as to speed of the Martin car at the time of accident, based on the shock of the impact.

(4) It was error to refuse to admit statement by Martin made immediately after accident that the speed of his car was the cause of the accident.

(5) It was competent to prove that decedent's mother and her sister reproved Martin in decedent's presence for reckless driving as these facts brought to her notice of his character as a reckless driver.

(6) It was competent to show by witnesses the general reputation of Martin as a reckless and careless driver.

(7) Under any theory of the case it was competent to show that Oldham was not acting for appellant company in making the trip, but was acting for Byron Barnes alone.

(8) The court should have sustained appellants' motion for a directed verdict.

(9) Under the law appellees' decedent was required to exercise ordinary care for her own safety under the circumstances surrounding her and was guilty of contributory negligence preventing a recovery.

(10) Instructions Nos. 1, 2, and 3 are erroneous statements of the law as applied to the facts and were misleading to the jury.

(11) Oldham had the right to run his car on any side of the road except when passing another car.

(12) The petition set out the specific acts of negligence complained of, five in number, as follows:

First. Oldham was incompetent and unqualified.

Second. He was operating the car unlawfully, as he had no license.

Third. He was operating at more than 20 miles an hour.

Fourth. He failed to sound an alarm at a point where he could not see 300 feet in front, and that the accident occurred at a curve on a hill.

Fifth. That he was operating it at an excessive speed.

(13) There being no evidence that Oldham was incompetent or that he was exceeding 20 miles an hour or going at an excessive speed, it was error to instruct on these points.

(14) The instructions submitted false issues not made in the pleadings or proof, and thus the jury were led into the field of speculation as to the facts.

Almost any one of the 14 foregoing reasons would be sufficient to reverse the judgment if accepted as true in this case. They may be reduced to a much less number because Nos. 1, 2, 7, and 8 may be considered under one head, and 3, 4, 5, and 6 under another, and all the others under the subjects of "contributory negligence" and "instructions to the jury."

Was the collision an unavoidable accident? An unavoidable accident is one from which there is no escape. But an accident which could have been prevented or avoided by the exercise of ordinary prudence is not an unavoidable...