Ramsey v. Sharpley

• Citation: 294 Ky. 286,171 S.W.2d 427
• Parties: RAMSEY v. SHARPLEY.
• Decision Date: 12 January 1943
• Court: Court of Appeals of Kentucky

171 S.W.2d 427

294 Ky. 286

RAMSEY v. SHARPLEY.

Court of Appeals of Kentucky

January 12, 1943

As Modified on Denial of Rehearing May 11, 1943.

Appeal from Circuit Court, Hopkins County; H. F. S. Bailey, Judge.

Action by Edgar Sharpley against Mary Louise Ramsey to recover for injuries sustained when struck by the defendant's automobile. Judgment for the plaintiff, and the defendant appeals.

Judgment affirmed.

Waddill Laffoon & Waddill, of Madisonville, and Jones, Keith & Jones of Louisville, for appellant.

Chas G. Franklin, of Madisonville, for appellee.

VAN SANT, Commissioner.

Appellee, Edgar Sharpley, plaintiff below, was permanently injured when struck by an automobile driven by appellant, Mary Louise Ramsey, defendant below, in the city of Madisonville between 6:30 and 7 o'clock A. M. on March 17, 1941. Appellee was a coal loader at a mine located east of Madisonville. On the morning of the accident he arrived at Prichett's Grocery Store located at the intersection of Center and Daves Streets to await the arrival of a fellow workman in whose car appellee customarily rode to work. The store faced Center Street and was 22 feet north of the curb. The car in which appellee had arranged to ride came to a stop on the south side of Center Street directly opposite the store. Appellee thereupon left the store and proceeded to cross the street directly toward the car. Center Street which he was required to traverse is 36 feet wide. Appellant resided several miles east of Madisonville and was driving west on Center Street toward Morton's Gap where she taught school. There is a curve in Center Street 324 feet east of Prichett's Grocery but for the remainder of the distance to the store the street is perfectly straight, and, on the morning of the accident, was unobstructed, except for two cars parked along the curb. The accident occurred near the center of the roadway. The testimony of appellee was to the effect that, when he saw his friend's car stop on the opposite side of the street, he came out of the store, picked up his lunch basket, walked to the curb on the north edge of Center Street, looked both ways, saw nothing coming, and started to walk across the street; that when he was near the middle of the street, he observed appellant's car being driven at a high rate of speed and so close upon him that he was unable to get out of its way. He was corroborated in his testimony by six witnesses who variously estimated the speed of the car from 45 to 70 miles per hour. Appellant testified that she was proceeding west on Center Street and after rounding the curve observed an automobile, which was parked about 100 feet east of the store, start to pull away from the curb. The driver of the car, upon observing appellant, backed to his former position. Appellant passed the car and continued her course, driving to the north of the center line of the street at a speed of between 20 and 25 miles per hour; that as she approached the point of impact appellee suddenly ran from behind a car parked in front of Prichett's Grocery; that when she first saw him he was about 6 feet in front of her; that he turned around to get out of her way when she struck him; that there was nothing that she could have done that she did not do to avoid the accident. She was corroborated to some extent by two witnesses. Appellant admits that she did not give any signal or warning of her approach. The scene of the accident is a closely built up residential section of the city. She testified that she traveled about 20 feet after striking appellee. Other witnesses testified that she traveled about 200 feet before stopping. The uncontradicted testimony shows that appellee was hurled, or carried and thrown, into the air against a telephone pole on the northwest corner of the intersection of Center and Daves Streets, 45 feet distant from the point of the impact, striking the pole 6 or 7 feet above the ground. The weather was cold and clear; the street was dry. Judgment was entered on a verdict awarding appellee damages in the sum of $3,500.

Reversal is sought on the grounds that the trial court erred, (1) in failing to sustain defendant's motion for a peremptory instruction; (2) in submitting to the jury an instruction on the doctrine of last clear chance; (3) in its interpretation of the last clear chance doctrine as expressed in the language used in the instruction; (4) because the instructions as a whole are confusing, and, (5) in failing to properly present defendant's theory of the case and refusing the instructions offered by the defendant.

In support of the first contention it is urged that appellee was guilty of contributory negligence as a matter of law under the provisions of KRS 189.570, Section 2739g-69s Carroll's Kentucky Statutes because, in traversing the street, he was not crossing at an intersection or marked crosswalk. KRS 189.570 is in the following words:

"(a) Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.

"(b) * * *

"(c) * * *

"(d) Notwithstanding the provisions of this subsection every operator of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing a child or a confused or incapacitated person upon a roadway."

To uphold this contention would be to disregard subsection d, supra. Although the statute requires a pedestrian crossing the street between intersections and without a marked crosswalk to yield the right-of-way to vehicles on the roadway, it does not exonerate the operator of the vehicle of liability to such pedestrian if the latter is injured as the proximate result of negligence of the driver, unless the improper crossing by the pedestrian contributes to the cause of the injury and in the absence of which the accident would not have occurred. The proximate and contributory case of the injury must be determined by the jury under our system of jurisprudence. The evidence of appellant's negligence in the operation of her car was sufficient to support the jury's finding that it was the proximate cause of the accident and that appellee's negligence, if he was negligent, in crossing the street at the place the accident occurred did not contribute to the cause of his injury. That being true, the court properly overruled appellant's motion for a directed verdict.

We turn to the complaint that the court erred in presenting to the jury the theory of the last clear chance doctrine. It is true, as argued by appellant, and expressed in the case of Jones v. Gardiner, 262 Ky. 812, 20 S.W.2d 520, that the doctrine of last clear chance has no application unless the injured and complaining party, by his own negligence, has placed himself in a position of peril and the peril has been or by the exercise of ordinary care could have been, discovered by the defendant and by the use of the means at hand could have been avoided by him. But that rule does not militate against the application of the doctrine to the facts and circumstances proven in this case. Appellant has contended from the beginning that appellee placed himself in a position of peril by his own negligence, and she will not be permitted to maintain a contrary contention on this point. From the time appellant rounded the curve and was proceeding upon a straight away 324 feet from the scene of the accident, there were only two cars to obstruct her view of appellee, who walked or ran from the store, a distance of at least 37 feet, to the place of the accident; and while she was traveling the last 100 feet only one car, which we must assume was of the usual width, stood between her and a full view of appellee. She testified that she was traveling only 20 or 25 miles per hour and admitted that she saw appellee when he stepped from behind the one car which momentarily or partially obstructed her view during her journey over the last 100 feet. She stated that when she first saw appellee he was only 6 feet away. If she had been that close upon him when she discovered the peril she would have passed him ere he reached the position where he was struck which...