Ray v. Ray

• Decision Date: 24 November 1922
• Citation: 245 S.W. 287,196 Ky. 579
• Parties: RAY v. RAY (TWO CASES).
• Court: Kentucky Court of Appeals

245 S.W. 287

196 Ky. 579

RAY v. RAY (TWO CASES).

Court of Appeals of Kentucky.

November 24, 1922

Appeal from Circuit Court, Hardin County.

Actions by Ellen Ray against Andrew E. Ray, and by Andrew E. Ray against Ellen Ray. From judgments rendered Andrew E. Ray appeals. Judgments affirmed.

J. E Wise, G. K. Holbert, and H. L. James, all of Elizabethtown for appellant.

L. A Faurest, of Elizabethtown, for appellee.

THOMAS J.

Appellee in the above two actions, Ellen Ray, filed the first one in the Hardin circuit court against appellant, Andrew E. Ray, alleging that he wrongfully and negligently operated his automobile on the public highway in Hardin county by willfully and carelessly running it against a mule hitched to a buggy in which plaintiff, her husband and two small children, were riding, and causing the mule to become frightened and to run off with the buggy, whereby plaintiff was thrown out of it and sustained severe, permanent, and painful injuries to her right arm and shoulder, producing great mental pain and anguish, and permanently impairing her ability to work or perform her household duties. She sought a judgment for general damages in the sum of $20,000, and for special damages incurred for surgical and medical attention in the sum of $110, or a total sum of $20,110. The answer denied the negligence charged, as well as the damages claimed, although it was not denied that plaintiff sustained injuries, and pleaded contributory negligence on the part of plaintiff, which was denied by a reply, and upon trial the jury, under instructions from the court, returned a verdict in her favor against defendant for the sum of $2,500, upon which judgment was rendered, and, the court declining to set it aside on a motion for a new trial, defendant has appealed upon the grounds as expressly stated in brief that--

"First, the court erred in failing and refusing to give to the jury a correct instruction on contributory negligence; second, the court erred in refusing to admit evidence as to a statement made by the husband of appellee in her presence; and, third, the court erred in rendering a judgment on the verdict of the jury because the verdict was too indefinite and uncertain to authorize it, and the court had no authority to reassemble the jury after it had been discharged and some of the members had left the courtroom,"

--and those are the only grounds argued for a reversal.

The second case in the caption was an action filed after the adjournment of the court in which the judgment was rendered, by the defendant therein, to obtain a new trial on the ground of newly discovered evidence material to his defense, and which he did not and could not, by the exercise of ordinary diligence, discover before the trial of the original case. The grounds for that motion were properly put in issue by the pleadings, and upon submission of the cause the court overruled it and dismissed the petition, from which judgment appellant prosecutes the second appeal in the caption. By agreement of parties the two appeals are heard together in this court, and they will be disposed of in one opinion; the original appeal receiving first consideration.

1. To the first complaint against the judgment of the failure of the court to instruct the jury on contributory negligence of plaintiff at least three answers may be made, which are: (a) That there is no evidence of any contributory negligence to sustain it, on the part of either plaintiff or her husband; (b) that if there had been proof of negligence on the part of the husband, who was driving the mule, it could not, under the state of the record, be imputed to his wife, the plaintiff; and (c) no such instruction was asked by defendant at the trial. Only the parties to the suit testified as to what occurred at the time of the accident. Plaintiff testified that the buggy in which she was riding met defendant in his automobile just as she and her husband were driving into the road from a temporary detour around a mudhole, and that plaintiff ran his automobile against the fore legs of the mule without stopping, and caused it to become frightened and run away, and that before doing so he said to her husband, "Get out of my way; I will run over you," whereupon her husband said to him, "For God's sake, Cebe, don't do that; don't crowd me like that." After plaintiff was hurt and was taken home in the automobile of defendant, her two sons, one of whom was 13 and the other 15 years of age, testified that plaintiff stated to them that "He ran into father and mother with the machine, and scared the mule, and she ran down through the woods." They also testified that after the mule, which broke loose from the buggy and was running at large on the commons, was found on the next day, it had a large knot on its left fore leg near the knee, which eventually disappeared, leaving a spot devoid of hair. Defendant testified that, as he approached the buggy containing plaintiff and her husband, they were driving around the mudhole in the road, and, quoting from his testimony:

"I drove up on the main road, and when I came to this mudhole I started to go around. I stopped so that they could come out into the main road. They tried to stop, but the mule wouldn't stop. He reared up and ran down through the woods."

He then testified that he killed his engine and stopped the automobile 10 or 12 feet in front of the mule, and that he never ran against it or touched it with his automobile. The great preponderance of the evidence showed that the mule was gentle and unafraid of automobiles, and that it had been frequently driven by the members of plaintiff's family, including herself, on the various roads in the community, and had met and passed many automobiles without its paying the slightest attention to them; while defendant introduced a less number of witnesses to show that the mule on former occasions had shied at automobiles. The foregoing testimony is, in substance, all that was heard at the trial as to how the accident happened, and there is nothing in it upon which to base a charge of contributory negligence on the part of any one, and answer (a) must therefore be considered as established.

In the cases of Winston's Adm'r v. City of Henderson, 179 Ky. 220, 200 S.W. 330, L. R. A. 1918C, 646, and Barnes & Brother v. Eastin's Adm'r, 190 Ky. 392, 227 S.W. 578, it was held that the negligence of the driver of an automobile or other vehicle would be imputed to an invitee or licensee riding therein if the latter had knowledge of the facts constituting the contributory negligence for a sufficient time prior to the accident to enable him to take the requisite precautionary steps to avert it, and if he should fail to take such steps within such time, and was afterwards injured through the alleged negligence of another, the latter, in a suit against him by the invitee or licensee, could rely on contributory negligence of the driver. No such rule applies, however, when the contributory negligence of the driver arises suddenly and without an opportunity of the invitee or licensee to exercise the proper care to avoid its consequences or to provide for his safety. And so, in the cases of Louisville Ry. Co. v. McCarthy, 129 Ky. 814, 112 S.W. 925, 19 L. R. A. (N. S.) 230, 130 Am. St. Rep. 494, and City of Louisville v. Zoeller, 155 Ky. 192, 160 S.W. 500, it was held that, under facts not distinguishable from those in this case, the negligence of the husband as driver of the vehicle in which his wife was riding could not be imputed to the latter in an action by her against the producer of her injuries, and therefore answer (b) is also effectual against the contention.

The rule of practice to the effect that in civil cases it is not the duty of the court to give to the jury the whole law of the case, and that a litigant may not complain of the judgment, either on a motion for a new trial or on appeal because the court did not instruct the jury on a material issue in the case, when no instruction was offered on that issue, is so universally applied in this and other courts that we deem it scarcely necessary to cite cases in support of it. The practice is elementary, and some of the many cases from this court, recognizing and applying it, are: Asher v. Metcalfe, 152 Ky. 632, 153 S.W. 987; Chesapeake & Ohio Ry. Co. v. Shaw, 168 Ky. 537, 182 S.W. 653; Winchester v. Watson, 169 Ky. 213, 183 S.W. 483; Spiegle v. C., N. O. & T. P. Ry. Co., 170 Ky. 285, 185 S.W. 1138, and numerous others cited therein. If, however, the court attempts to instruct upon an issue, it should be properly done, and if the complaining litigant offers an instruction upon an issue, though incorrect, it would be the duty of the court to prepare and give the correct one on that issue. In this case the court did not attempt to instruct the jury on contributory negligence, either properly or improperly, nor did defendant offer any instructions upon that issue, and under no view of the case is he now entitled to complain of the failure of the court to instruct on contributory negligence, and for that reason answer (c) must prevail.

The second ground relied on for a reversal is bottomed on testimony offered to be proven by the witness J. R Slaughter, who was asked, "State whether or not Bruno Ray [pla...