Peak v. Arnett
| Decision Date | 04 March 1930 |
| Citation | 233 Ky. 756 |
| Parties | Peak v. Arnett et al. |
| Court | United States State Supreme Court — District of Kentucky |
4. New Trial. — Court has no right to rejudge judgment of jury on question of fact or credibility of witnesses, and court is empowered to set aside verdict on ground of insufficient evidence to sustain it only when verdict is flagrantly and palpably against manifest weight of proven facts and circumstances.
5. Negligence. — Where both parties are negligent, the one with the last clear opportunity to avoid accident, notwithstanding negligence of the other, is held wholly responsible for it; his neglect being deemed direct and proximate cause.
6. Automobiles. — There was no basis for application of doctrine of last clear chance in action for injury to pedestrian struck by automobile at intersection, where under evidence plaintiff either walked against defendants' automobile, or driver proceeding against red light ran automobile against plaintiff, who stepped from place of safety immediately before accident.
7. Automobiles. — Driver of automobile is not required to anticipate that pedestrian seen in place of safety will leave that place and get in danger zone until some demonstration or movement on part of pedestrian reasonably indicates such fact.
8. Automobiles. — In action for injury to pedestrian struck while crossing street at intersection by automobile driven by defendant, evidence held insufficient to warrant instruction on discovered peril.
9. Automobiles. — In action for injury to pedestrian struck by automobile at intersection in which it was shown that accident did not happen while signal light was yellow or by reason of any failure of defendant driver to make proper preparation for stop, it was not necessary to give any instruction that driver must obey traffic ordinances relative to signal lights at intersection of street.
10. Appeal and Error. — Where dispute was disposed of by properly instructed jury and there was evidence to sustain verdict, it is conclusive on court.
Appeal from Jefferson Circuit Court
HUBBARD BROS. for appellant.
WOODWARD, HAMILTON & HOBSON for appellees.
Affirming.
Damon Peak instituted an action against Cary G. Arnett and wife to recover damages for a personal injury. It was alleged in the petition that plaintiff was struck by the defendants' automobile as a consequence of careless and negligent driving. The defendants denied the charges of negligence and pleaded contributory negligence upon the part of the plaintiff as a bar to the action. A jury trial resulted in a verdict for the defendants, and the plaintiff was denied a new trial. He seeks a reversal upon the grounds: (1) That the verdict of the jury was flagrantly against the evidence; (2) that the court refused to give an instruction authorizing a recovery under the doctrine of "the last clear chance;" (3) that the court refused to give an instruction respecting the signal light when it showed yellow preliminary to changing to red; and (4) that the instruction which required the plaintiff to refrain from crossing Broadway when the traffic signal light was green for east and west traffic on that street was erroneous.
1. The accident occurred at the intersection of Broadway and Shelby streets in the city of Louisville. Broadway is a very wide street running east and west, and Shelby street, about one-half as wide, runs north and south. Double tracks for street cars intersect at this point, and loading platforms for street car passengers are maintained in Broadway on each side of Shelby street. The traffic there is heavy and it is controlled by a system of signal lights. When the signal light is red, traffic approaching it stops, while the traffic on the intersecting street in the other directions is permitted to proceed. When the signal light turns green, the alternate situation obtains, and the process goes on continuously. A yellow light shows for a brief period between the changes to indicate that a change is impending. There was testimony tending to show that the plaintiff started to cross Broadway when the light was green for the direction he was going, and red against intersecting traffic. When he got near the south street car platform, the lights changed against him and he remained there in a safety zone until they again turned green for him to proceed, and, after taking a few steps, he was struck and injured by the defendants' automobile. It is apparent that he was entitled to recover, if his proof and theory of the case was accepted as true. But the evidence for the defendants tended to show that plaintiff was proceeding against a red light and walked into traffic properly moving eastward on Broadway; that the automobile was moving at a speed of about fifteen or eighteen miles an hour; and that plaintiff walked directly into the side of defendants' car. Obviously, the defendants were entitled to a verdict if the testimony for them was accepted. In that state of the record the court properly submitted to the jury the respective contentions of the parties. Instruction No. 1 set forth the conditions under which the defendants were liable and the plaintiff had a right to recover. No complaint is made of that instruction. At the same time it was the duty of the court to submit the defendants' theory of the case in so far as it found support in the evidence. Shafer v. C. & O.R. Co., 228 Ky. 219, 14 S.W. (2d) 780; Denunzio v. Donahue, 204 Ky. 705, 265 S.W. 299. And that was done by an instruction which told the jury that it was the duty of plaintiff, if the signal was green for east and west bound traffic on Broadway, not to attempt to cross said street until the signal changed. The jury was further advised that in crossing the street it was the duty of plaintiff to exercise ordinary care for his own safety, and if the jury found from the evidence that the plaintiff brought about his own injury by failing to observe the duties imposed upon him as defined by that instruction, then he could not recover if such violation contributed to cause his injury, and but for which it would not have happened. The issues between the parties were submitted to the jury accurately and adequately. It was a case where the difference between the respective claims was sharply defined, and the jury must have found that the contention of the defendants as to how the accident occurred was the true version of the affair. Major Taylor & Co. v. Harding, 182 Ky. 236, 206 S.W. 285; Wight v. Rose, 209 Ky. 803, 273 S.W. 472. The verdict of the jury is not contrary to the evidence. The court has no right to rejudge the judgment of the jury on a question of fact or the credibility of witnesses. It is empowered to set aside a verdict on the ground of insufficient evidence to sustain it only when the verdict is flagrantly and palpably against the manifest weight of the proven facts and circumstances. Louisville & N.R. Co. v. Rowland's Adm'r, 227 Ky. 841, 14 S.W. (2d) 174, 177. Plaintiff produced the testimony of disinterested witnesses that the accident occurred in the manner claimed by him, but the defendants showed by a larger number of witnesses, some of whom were disinterested, that it occurred in the manner claimed by them. A conflict of that kind in the evidence must be resolved by a jury, and a verdict may not be set aside as against the weight of the evidence in cases of that character. Howard v. Louisville R. Co., 105 S.W. 932, 32 Ky. Law Rep. 309; Commonwealth Life Ins. Co. v. Pendleton, 231 Ky. 591, 21 S.W. (2d) 985; Powell v. Galloway, 229 Ky. 37, 16 S.W. (2d) 489 2. Appellant offered an instruction to the effect that if the driver for the...
To continue reading
Request your trial