Risen v. Consolidated Coach Corp.

• Decision Date: 24 June 1938
• Parties: RISEN v. CONSOLIDATED COACH CORPORATION et al.
• Court: Kentucky Court of Appeals

118 S.W.2d 712

274 Ky. 342

RISEN v. CONSOLIDATED COACH CORPORATION et al.

Court of Appeals of Kentucky

June 24, 1938

Appeal from Circuit Court, Adair County.

Action by L. F. Risen against the Consolidated Coach Corporation and another for injuries sustained in a collision between a bus owned by the named defendant and in which plaintiff was passenger and an automobile owned by the remaining defendant. Judgment dismissing the petition as against both defendants and plaintiff appeals.

Affirmed.

O. B Bertram, of Campbellsville, for appellant.

R. W Keenon, of Lexington, Hurt & Hurt, of Columbia, and Laurence B. Finn, of Bowling Green, for appellees.

THOMAS Justice.

The appellant and plaintiff below, L. F. Risen, is a farmer residing in Adair County, Kentucky. The appellee and one of the defendants, Consolidated Coach Corporation, is an incorporated company, and at the times here involved it was a common carrier of passengers by means of busses operated on the public highways of this commonwealth, with proper permission. It will be hereinafter referred to as the "bus company." The appellee, and a defendant below Southern Continental Telephone Company, is likewise a corporation and at the times here involved it operated a telephone system throughout some counties in the southern part of the commonwealth, embracing Green, Adair, Taylor, Marion and, perhaps, others. It will hereinafter be referred to as the "telephone company."

On January 24, 1936, plaintiff was a passenger in one of the busses of the bus company destined from Lebanon, Kentucky, to Columbia, Kentucky. The bus in which he was traveling ran over the state highway between those two points, along which the road crossed Muldraugh's Hill, a very high ridge approaching the dimensions of a mountain in some places. It was traveling south on that highway. The north side of Muldraugh's Hill that the road climbed before getting to the top of it was about a mile long and quite steep in some places. Somewhere near the foot of the hill on its north side an automobile owned by the telephone company, traveling north and coming down that side of the hill, collided with the bus in which plaintiff was traveling--striking it near its left side where plaintiff was sitting--and the impact knocked the bus almost if not completely into a ditch along its right side of the road. As a result of the impact plaintiff received bodily injuries, to recover damages for which he filed this action in the Adair circuit court against both defendants, seeking judgment against each of them for $2,900.

The negligence as a basis for plaintiff's right of recovery, as averred in the petition, was: "That said bus and automobile when being so operated as heretofore set out, met at or near the foot of Big Muldraughs Hill, in Marion County, Kentucky, and at said time and place, said bus and said automobile collided with each other; that said collision of said bus and said automobile was brought about or caused by the gross and wanton negligence and carelessness of said servants, agents, employees, chauffeurs of the defendants, who were in charge of said bus and said automobile at the time and place of said accident and collision."

The answers of the two defendants put in issue the averments of the petition, and each of them averred that if the accident was caused by anyone's negligence it was that of the other one. Each of them also averred contributory negligence on the part of plaintiff. Following pleadings, demurrers and motions formed the issues, and at the close of plaintiff's testimony (he having introduced a servant of the telephone company who was in its colliding automobile at the time) the court sustained the motions of both defendants for a directed verdict in their favor, and which was accordingly returned by the jury, followed by a judgment dismissing the petition as against both defendants. To reverse it plaintiff prosecutes this appeal, complaining, of course, of the alleged error of the court in sustaining the motions referred to.

There was a map made of the road and the mountainside, which revealed locations by a witness who said he was a surveyor and it was used at the trial and about which the witnesses were interrogated, and it was introduced and made a part of the record at the trial; but it has not been brought here with the record, and which is in direct violation of subdivision 11 of Rule III of this Court. We have had occasion in many prior cases brought to this court to warn and admonish attorneys of the necessity of complying with that rule. Such warnings have been so repeatedly given and followed, with no diminishment of non-observance of the rule that we intimated in the case of Conley v. Commonwealth, 208 Ky. 538, 271 S.W. 566, that unless the map used at the trial was made a part of the record and brought to this court the appeal would be disposed of under the universal rule of appellate practice to the effect that, unless all of the evidence heard at the trial was brought to this court duly certified, it will be presumed that the omitted evidence justified the ruling of the court complained of. The rule as enunciated by this court prescribes that its non-observance "will be visited with such penalty in each case as the Court may deem proper." Sharp attention is called to a non-observance of the rule in the cases of Burchett v. Leslie, 186 Ky. 361, 216 S.W. 850, and Lewis v. Commonwealth, 224 Ky. 502, 6 S.W.2d 502, and cases prior to them, three of which are Hays v. Ison, 72 S.W. 733, 24 Ky.Law Rep. 1947, Pho nix Jellico Coal Company v. Lemp, Ky., 121 S.W. 418 (not elsewhere reported), and Dupoyster v. Miller, 160 Ky. 780, 170 S.W. 182. Especially should the penalty be an affirmance of the judgment--under the rule of practice supra--where the record as brought here is confused as to locations of material and relevant places, which the map would make clear and intelligible so as to enable us to accurately grasp the facts as they were made to appear before the jury who sat in the case, and before the judge who presided at the trial. However, since we are able to glean from the instant record enough to sustain the conclusion that the court did not err in directing a verdict for defendants, and that the judgment should be affirmed, we will refrain from inflicting the penalty above referred to for the violation of the involved rule.

At the time of the collision the bus was on its right side of the road with its right wheels on the extreme outer edge of the berm adjacent to the surfaced driveway, and it was almost stopped. Before it arrived at that spot its driver discovered the automobile of the telephone company approaching from the opposite direction as it came down the side of the hill,...