Prichard v. Collins

• Decision Date: 22 March 1929
• Citation: 228 Ky. 635
• Court: United States State Supreme Court — District of Kentucky
• Parties: Prichard v. Collins.

228 Ky. 635

Prichard v. Collins.

Court of Appeals of Kentucky.

Decided March 22, 1929.

1. Automobiles. — in action for injuries alleged to have been caused when defendant swerved his automobile in front of truck on which plaintiff was riding, striking truck, court, in its instruction, in addition to enumerating statutory dutes of defendant upon undertaking to pass truck, should have advised jury that it was also duty of defendant to exercise ordinary care for safety of occupants of truck.

2. Neglgence. — Precautions prescribed by statute do not relieve one from his common-law duty to observe ordinary care to avoid injury to others.

3. Automobiles. — In action for injuries alleged to have resulted from defendant's automobile striking truck on which plaintiff was riding, while undertaking to pass truck, instruction, after enumerating statutory duties of defendant in undertaking to pass another vehicle, should have contained further provision that if defendant failed to exercise any such duties, and by reason thereof his car collided with truck and thereby caused injuries complained of jury should find for plaintiff.

4. Negligence. — In action for injuries alleged to have resulted from defendant colliding with truck on which plaintiff was riding while attempting to pass truck, reference, in instruction, to correlative duties of driver of truck, should have been omitted, because his negligence, if any, cannot be imputed to plaintiff.

5. Negligence. — In action by occupant of truck for injuries alleged to have resulted when defendant collided with truck, while attempting to pass it, instruction respecting negligence on part of plaintiff should be omitted, since negligence, if any, of driver of truck could not be imputed to plaintiff.

6. Damages. — Instruction, in action for personal injuries, that jury should award plaintiff "such reasonable sum in damages as you may believe that plaintiff has sustained by reason of the injury complained of not to exceed the amount claimed in the petition," held erroneous because not fixing the basis by which damages are to be measured.

7. Damages. — The measure of damages for personal injuries, when it is sought to recover only for pain and suffering, is such sum as will reasonably compensate plaintiff for mental and physical pain and suffering that he has endured, and it is reasonably certain he will in the future endure, if any, by reason of negligent and wrongful acts of defendant.

8. Appeal and Error. — Where defendant excepted to court's erroneous instruction on measure of damages and incorporated it as ground in his motion for new trial, he may take advantage of error in instruction on appeal.

9. Damages. — Where substantial personal injury has been sustained, pain and suffering will be presumed, although there is no specific proof.

10. Automobiles. — In action for injuries alleged to have resulted from collision of automobile with truck while automobile was attempting to pass truck, evidence as to failure of truck driver to be licensed, and of owner of truck to have it registered, in state, was wholly immaterial and inadmissible.

11. Damages. — In absence of special plea of lost time and earnings in personal injury action, evidence respecting such element of damages is inadmissible.

Appeal from Carter Circuit Court.

JOHN M. THEOBALD for appellant.

BEN F. THOMPSON for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Reversing.

On Sunday morning, August 21, 1927, the appellee, H.C. Collins, and a party of young people on their way to a picnic, were riding in a Ford truck on the Midland trail not far from Olive Hill, in Carter county. The appellant, Wade Prichard, in a Chevrolet car, drove up behind the truck and passed it. At the time there was approaching him another automobile. It appears that the wheel or hub of Prichard's automobile struck the rear and the front wheel hubs of the truck, but not with much force. Evidence introduced by appellee was to the effect that the striking of the wheels on the truck caused it to swerve and run off a culvert and overturn. He was riding on the seat with the driver and had his foot mashed, for which injury he recovered judgment for $300 against Prichard.

Prichard testified that he felt something strike his fender, and expressed the opinion that the hub of the front wheel of the truck was driven under the fender of his machine. It is undisputed that the truck was being driven very close to the right-hand edge of the highway, and that there was plenty of room on the left for the defendant's car to have passed in perfect safety. The facts of this case are very similar to those in Moore v. Hart, 171 Ky. 725, 188 S.W. 861. An appeal will be granted and the case reversed because of an erroneous instruction.

Instruction No. 1 is erroneous in several particulars....