Park v. Schell

• Decision Date: 31 May 1927
• Citation: 220 Ky. 317
• Parties: Park v. Schell.
• Court: United States State Supreme Court — District of Kentucky

Page 317

220 Ky. 317

Park v. Schell.

Court of Appeals of Kentucky.

Decided May 31, 1927.

1. Highways. — In action for injuries resulting from automobile collision occurring on bridge, question of negligence of defendant's wife in turning automobile causing collision held for jury.

2. Damages. — In action for injuries resulting from automobile collision, extent of injuries which plaintiff sustained held for determination of jury.

3. Trial. — Instruction, in action for injuries, that jury should find for plaintiff unless they believed that defendant's wife had car under control and kept proper lookout and used ordinary care, held not erroneous as placing burden of proof on defendant, in view of instruction that jury should find for plaintiff if defendant's wife failed to discharge such duties.

4. Evidence. — Testimony that plaintiff, in asking witness to testify in suit in magistrate's court to recover for damages to car, did not mention personal injuries held inadmissible, in action for injuries resulting from automobile collision.

5. Highways. — Evidence of motorman as to speed of street car was competent, where plaintiff, suing for injuries from collision of his automobile with defendants, drove alongside street car.

6. Appeal and Error. — Though plaintiff suing for injuries from collision with another automobile was driving alongside street car, excluding evidence of motorman as to speed of street car held not prejudicial, where there was nothing to indicate that plaintiff was driving at dangerous rate of speed; speed being from 12 to 18 miles an hour.

7. Damages. — Damages awarded for injury to automobile resulting from collision were not rendered excessive by fact that plaintiff had previously filed suit before magistrate claiming lesser amount than that which jury awarded.

8. Appeal and Error. — Judgment should not be reversed for alleged errors not prejudicial to substantial rights of appellant.

9. Appeal and Error. — In action for injuries resulting from automobile collision, incidental testimony of plaintiff that defendant carried insurance against liability, though error, held not prejudicial, where not constituting attempt to place information before jury.

10. Appeal and Error. — Appellant cannot complain of trial court's failure to discharge jury for alleged errors in proceedings, where no motion for discharge was made.

Appeal from Kenton Circuit Court.

ROBERT C. SIMMONS and LOUIS B. SAWYER for appellant.

GALVIN & TRACY for appellee.

OPINION OF THE COURT BY JUDGE LOGAN.

Affirming.

This is an appeal from a judgment for $2,467, awarded to appellee by a jury in the Kenton circuit court. There had been a previous trial of the case which resulted in a verdict for $3,767 in favor of appellee. Nothing appears in the record as a reason for the setting aside of the first verdict. The verdict on which the judgment appealed from is based allowed appellee $2,200 for the injury to his person, $150 for damages to his car, and $117 the value of his time lost.

Only a brief recital of the facts is necessary. Appellee claims that, while proceeding in his automobile across the suspension bridge to Cincinnati where he worked, the wife of appellant suddenly turned the electric automobile driven by her so as to collide with him at a point on the bridge just past the center where it begins to descend towards Cincinnati. He claims that as a result of said collision he was twisted and turned and thrown against his steering wheel, causing an injury to his spine, and that he has not fully recovered. Appellant insists that his wife did not change the course of her car, and that appellee recklessly drove his car in such a manner as to collide with her car. Appellee sustains his contention by the witnesses who testified for him, and appellant sustains his contention by the testimony of his wife and probably by other witnesses. After the collision, appellee continued his work from the 7th day of October until the 18th day thereof, but during this time he was making visits to a chiropractor. He drove out to the office of the chiropractor himself occasionally, and at other times he was driven by his son. On the last-mentioned date, while visiting the chiropractor, he had a collapse, and was carried to his sister's home, where he remained about two weeks, and he spent about a week at home thereafter. He then returned to his work, but he insists that he has not been able since his return to perform his work as before his injury. He testified that he had suffered very much, and that he had a stiffness and pain in his back and over the sacroiliac tract. He was X-rayed on the 15th of October, and it is claimed that the X-ray picture showed a curvature of the spine. According to the testimony of appellee, corroborated at least in part by the doctors, his injury was painful and interfered with his following his usual business. The testimony of appellant's witnesses on the question of the extent of the injury to appellee tended to contradict the evidence offered by appellee.

The question as to the negligence of appellant, resulting in the collision and the extent of the injuries to appellee, were proper questions for determination by the jury, and there is enough evidence to support the jury on these questions in favor of appellee, and there was probably enough evidence to have supported a verdict in favor of appellant. For that reason there is no occasion for us to go into these matters, which were within the province of the jury if submitted to its consideration by proper instructions.

But appellant objects to the instructions given by the court, and insists that taking the first and second instructions together the effect of them was to place the burden on appellant to...