Perry's Adm'X v. Inter-Southern L. Ins. Co.

Decision Date07 February 1933
Citation248 Ky. 491
PartiesPerry's Adm'x. v. Inter-Southern Life Ins. Co.
CourtUnited States State Supreme Court — District of Kentucky

Appeal from Jefferson Circuit Court

BENJ. F. GARDNER and IRVING WALKER for appellant.

L.H. HILTON and BEN S. WASHER for appellee.

OPINION OF THE COURT BY JUDGE RATLIFF.

Reversing.

James Perry, a man 46 years of age, was an employee of the F.J. Russ Furniture Repair Company, of Louisville, Ky. On the morning of May 21, 1929, he left his place of employment about 11 a.m., and on the same day between the hours of 6 and 9 o'clock p.m. he was found lying in an unconscious condition on the street near the southwest corner of the intersection of Seventh and Main streets in the city of Louisville, Ky. A United States government mail box, made of sheet iron, weighing about 148 pounds, was found, some witnesses say, on him, and others, that it was near his body. He had a cut about two inches long over the left eye brow; another about the same over the forehead, a little further up over the eye; a three-inch cut on the left cheek running back toward the ear; a laceration of the scalp behind the left ear; bruises on the right side of the chin below, apparently made by a heavy instrument of some kind, and also a fractured skull — back behind the ear — on the left side.

When he was about thirteen years of age, while riding a horse, he was accidently thrown therefrom and sustained an injury to his leg, which necessitated its amputation about midway between the hip and the knee. From that time, and at the time he was found injured on the street, he had worn an artificial limb, made of English redwood, reinforced with rawhide. The rawhide gave it strength-power of resistance. It was made to stand lots of strain, and would wear eight or ten years. The artificial leg was broken, and witnesses testified that it required great force to break it. He was picked up and carried to the hospital. He was wearing a coat at the time of his injury, which was practically new, made of strong, durable material. The sleeves and elbows of the coat were torn, jagged, and other clothing torn and in a blood-soaked condition. At the time he was found on the street, his head was pointed or lying east, in the direction of the street car track on Seventh street, he was unconscious and bleeding. Those present at the time he was found lying on the street disagree as to the whereabouts of the mail box. One witness stated that it was lying out on the street about eight or ten feet away from him; west of his body. Another witness stated that it was about eighteen inches from his head, lying next to the curb. There was blood in the street, five or six feet from the curb, toward the street car track on Main street. A sack containing tools, or something, was found about or near his body. Another witness testified there was plenty of blood there; that he pulled the mail box off Perry; the top part was lying on his chest. Another witness stated that it was lying back of his head. The majority of the witnesses stated it was not on his body. After he was found, the sack that was lying near his body was placed under his head. A spot of blood was found on the street two feet from the street car track. Before he was injured, he was strong and in good health.

Perry was observed between 6 and 7 p.m., traveling on a Sixth street car, going north. Nothing unusual in his condition was observable at that time. A noise like a mail box falling in the street was heard by several witnesses who were in the immediate vicinity of the place he was found injured. Immediately on hearing the noise, these witnesses went to the place where he was found, and found him in the condition hereinbefore stated. About the time the noise was heard, several automobiles, ten to fifteen, were in the act of passing. An inspector of the Louisville Railway Company, who was on the northeast corner of Seventh and Main street, and who endeavored to get to the place where the noise was heard, was required to wait the clearing of the traffic before he could go to the place where he located the noise of the falling of the mail box. After he got across the street he went immediately to where Perry's body was lying and in the condition described by him and other witnesses.

Perry never recovered consciousness, and died the next day. At that time and previous to his injury and death, he was insured by a policy issued and delivered to him by the Inter-Southern Life Insurance Company, whereby it agreed to pay to his estate in the event of his death resulting "by being struck or knocked down, or run over while walking, or standing, on a public highway by any automobile, motorcycle, or bicycle, or any vehicle propelled by steam, cable, naphtha, gasoline, horse, compressed air, or liquid power, including injuries sustained while working on a public highway, or on a railroad right of way." The insurance company denied its liability. This action was brought by the administratrix of his estate to recover the face of the policy, $1,500.

The theory of the action is that he was knocked down and injured by a motor-driven vehicle at the time he was found on the street, and that the quoted provision of the policy obligates the company to pay his estate the $1,500. The defense is a denial. At the completion of appellant's evidence the court peremptorily instructed the jury to find for the insurance company. The administratrix appeals.

The decisive question in this case is the correctness of the ruling of the court, giving the peremptory instruction....

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