Reibert v. Thompson
| Decision Date | 08 February 1946 |
| Parties | REIBERT v. THOMPSON. KOST v. SAME. |
| Court | Kentucky Court of Appeals |
As Extended on Denial of Rehearing June 21, 1946.
Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division; Joseph J. Hancock, Judge.
Consolidated actions by Dorothy Reibert (now Leibson) and Mildred Kost against Ada Louise Thompson to recover for injuries sustained in same automobile accident. From judgments for defendant plaintiffs appeal.
Reversed.
Woodward, Dawson, Hobson & Fulton and Bullitt & Middleton, all of Louisville, for appellants.
Robert L. Page, of Louisville, for appellee.
This is the second appearance here of these consolidated cases. The facts as set out in the former appeal, Thompson v. Kost, 298 Ky. 32, 181 S.W.2d 445, are the same as in this case, with the exceptions hereinafter set out. It will, therefore, be unnecessary to detail them other than to show wherein they differ.
The accident occurred about five o'clock in the morning on return trip from Cincinnati, where the involved parties had been to attend a dental helpers' chinic. The evidence discloses that while driving on U.S. Highway 42, with no apparent obstruction or bad condition of the road, the car in which the appellants were riding, and which was being driven by Miss Thompson, the appellee, suddenly swerved to the left, then to the right and then off the road, seriously injuring the three occupants therein.
The appellee knows nothing about how the accident happened. Her mind appears to be completely blank about the whole affair. She doesn't even remember plainning the trip to Cincinnati.
The appellants, likewise, are completely blank as to what happened at the time of the accident, and as far as this record goes, all that is known about it is given in the testimony of the occupants of the car driven by a Miss Erb, whose car was following closely behind the Thompson car.
The lower court in the former trial peremptorily instructed for the plaintiffs and left only the assessment of damages to the jury. That judgment was reversed by this court as it was the view of the court that while the res ipsa loquitur doctrine applied, it was not such a case as would justify the lone legitimate inference that the driver was negligent, since the jury might have inferred from the evidence that the accident was caused by a blowout of the right front tire without negligence on part of the defendant, and for the further reason, that there appeared sufficient evidence of contributory negligence on the part of the plaintiffs to have the question submitted to the jury.
The evidence in this case differs materially from the evidence on which the above exceptions were made. In the first place, there is a variance in the testimony relative to drinking. On the former trial there appears more evidence about drinking than in this. It appeared there that Miss Thompson drank a cocktail in Cincinnati. In the instant case there was evidence that at eleven o'clock the night before, which was some six hours prior to the accident, and before leaving the Netherland Plaza Hotel, the girls stopped for refreshments. The appellant, Dorothy Reibert (now Leibson) had a coca cola but said she did not know what the other girls drank. Elizabeth Erb said she drank a bottle of beer but did not know what the other girls drank, and as far as the record in the instant case goes, there is no proof of what Miss Thompson drank.
In the next place, there was evidence on the former trial that an examination of the wrecked car after the accident showed a blown out tire. In this case there is no proof of a blown out tire or of any inferential intervening agency, and there is nothing on which you can place your finger that would indicate, in any way, any negligence on the part of the plaintiffs.
The appellee takes the position that the former opinion becomes the law of the case. That can be true only where the facts are substantially identical, or the same, upon the trial of each case.
Appellee in supplemental brief admits that the witnesses, who on the former trial testified about the blown out tire, did not testify at the latter trial. That testimony was the basis of the statement in the former opinion that the jury might have made more than one inference.
Stripped then, of the facts upon which the exceptions were made in the former...
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