Pierce v. Hosman

• Decision Date: 04 December 1923
• Citation: 256 S.W. 397,201 Ky. 278
• Parties: PIERCE v. HOSMAN.
• Court: Kentucky Court of Appeals

256 S.W. 397

201 Ky. 278

PIERCE v. HOSMAN.

Court of Appeals of Kentucky.

December 4, 1923

Appeal from Circuit Court, Union County.

Action by I. H. Pierce against Robert T. Hosman. Judgment for defendant, and plaintiff appeals. Affirmed.

Vance &amp Heilbronner, of Henderson, and Allen, Harris & Allen and Truman Drury, all of Morganfield, for appellant.

Morton & Morton and Flournoy & Flournoy, all of Morganfield, for appellee.

SAMPSON C.J.

The automobile of appellee Hosman struck and injured appellant Pierce, while the latter was crossing Court street in the city of Morganfield, about noon on May 22, 1920, and this action for damages in favor of Pierce results. The verdict of the jury being for appellant, Hosman, defendant below, Pierce prosecutes this appeal to reverse the judgment entered thereon.

For appellant Pierce it was shown in evidence that he had just come into town in an automobile driven by one Manning, and stopped on Court street opposite appellant's sewing machine store. Appellant alighted and passing in front of the Manning car, crossed the street to his place of business left a sewing machine head, and started back across the street to get into the Manning car when he was suddenly and unexpectedly struck from the rear by the automobile of Hosman; that appellant was about the center of the street which was clear except for two other automobiles standing one on the east side and the other on the west side of Court street; that appellant did not see or know of the approach of the Hosman car until it was within about 2 feet of him and he did not have time to even take a step until struck; that the car was traveling fast, gave no signal and was making no noise; that appellant was in plain view of one approaching in an automobile as was Hosman for a distance of more than 100 feet.

The evidence for appellee Hosman tends to prove that the cars standing on the street nearly opposite each other almost obstructed the street, which was only about 30 feet wide; that one of them, a large car with top up, was next to appellant's store entrance; that appellant came out of his store and passed behind the big car and as he emerged he stepped immediately in front of the car driven by appellee, so close that appellee could not avoid striking appellant although all brakes were employed in emergency to stop the car; that appellee could not see appellant and appellant was not visible on the street to one in appellee's car until the instant appellant stepped from behind the big standing car into the course and immediately in front of appellee's car and was struck; that appellee gave a signal by sounding the horn on his car as he passed the intersection about 100 feet from the place of the accident; that appellee was driving at a very slow rate not exceeding 5 to 8 miles per hour; that he did not know or have any means of knowing of the presence of appellant at the place of the accident until the instant he was struck.

It is admitted that appellant Pierce was seriously injured by the collision.

As neither the brief of appellant nor of appellee conforms to rule 3 (154 S.W. vii) of the court, requiring a classification of the questions with authorities subjoined, it is difficult to determine, without great effort, and time, the exact contentions made by the respective parties. Both briefs should be striken.

Appellant contends that no instruction should have been given by the court on ...