Rogers v. Price
| Decision Date | 20 February 1942 |
| Citation | 290 Ky. 153 |
| Parties | Rogers et al. v. Price et al. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — The Court of Appeals is reluctant to set aside jury's verdict for damages, unless award is so disproportionate as to strike court at first blush as being result of prejudice, passion, corruption or mistake in application of law.
4. Evidence. — In action for injuries to automobile driver in collision with defendant's automobile as alleged result of negligent operation thereof on wrong side of road at excessive speed, evidence held sufficient to justify jury's verdict for plaintiff, though two witnesses testified for defendants and only one for plaintiff as to direct manner of accident.
5. Evidence. — The jury may believe one set of witnesses as against another set, regardless of respective numbers thereof.
6. Trial; Workmen's Compensation. — In action for injuries to automobile driver in collision with defendant's automobile, where demurrer to workmen's compensation insurer's petition, pleading right of subrogation for amount of compensation paid plaintiff, was overruled, parties thereupon agreed that actions should be consolidated and submitted with issues thus formed, and plaintiff's counsel remarked, when he objected to question asked plaintiff as to whether he had recovered from insurer, that there was no dispute that plaintiff received stated amount of insurance compensation, which would be credited on any judgment, trial court properly handled such matter by instructing jury not to consider such phase of case and credited judgment for plaintiff with amount paid by insurer.
7. Automobiles. — An employer was not civilly liable for employee's negligent acts in driving his own automobile under no control of employer in its operation or business in which he was engaged at the time of collision with another automobile.
8. Workmen's Compensation. — In action for injuries to automobile driver in collision with another automobile, trial court properly refused to allow defendants to read to jury proceedings before Industrial Commission of foreign state on plaintiff's application for workmen's compensation and resulting award of compensation to him in support of defendants' prayer for allowance of credit for amount awarded on any judgment for plaintiff, as right to such credit was for court's, not jury's, consideration.
9. Trial. — In action for injuries to automobile driver in collision with defendant's automobile, trial court's procedure in giving instructions in detail as to defendant's duties in driving automobile and merely stating that plaintiff's duties were identical with those prescribed for defendant was not erroneous as confusing or misleading jury.
10. Trial. — In action for injuries to automobile driver in collision with defendant's automobile, instructions to find for neither driver, if jury believed that both were guilty of negligence, were not misleading, in view of other instructions as to drivers' relative duties and conclusion to be reached on belief that either failed to observe such duties, though better practice would have been to submit question of plaintiff's contributory negligence in separate instructions.
11. Appeal and Error. — In personal injury suit, where no member of defendant firm was present at trial and evidence showed that individual defendant's counsel advised such defendant that he might go home after testifying and he not only showed by his testimony that he was not interested in result, but testified without objection that he made no claim until plaintiff sued him and then turned matter over to insurance company, argument of plaintiff's counsel to jury that neither defendant cared enough about case to come to trial, that individual defendant left courtroom after testifying, and that defendants did not care what jury did, was not error prejudicial to defendants' rights.
Appeal from Union Circuit Court.
Henson & Taylor for appellants.
King, Flournoy & Ruark for appellees.
Before M.L. Blackwell, Judge.
Affirming.
On May 30, 1939, Price, plaintiff below, a resident of Eldorado, Illinois, selling cars for the Burnett Motor Company of the same place, was traveling north on Highway No. 56 and came into collision with a car driven by T.F. Jarrett, an employe of the Rogers Truck Line, both residents of Texas. Jarrett was driving southwardly from Evansville, Indiana, to Shawneetown, Illinois. Price was driving northwardly from Shawneetown to Morganfield, Kentucky. Price testified that he was driving about 35 miles per hour, and on his right side of the highway. As he was rounding a curve he saw Jarrett's car at a distance of about 175 feet, traveling at a speed estimated at 60 miles; that when within about 20 feet of the car, and it appeared that Jarret was going to strike his car, he turned quickly and attempted to avoid the impending collision. He insists that at the time of the accident Jarrett was on the wrong side of the road. Price's left arm was resting on the window, and the impact tore it off.
After the collision the Price car ran for some distance down and across the left of the highway and turned over. He was unable to guide it because of the injury to his arm. His left fender and left wheel were broken down, and the left door mashed in. The 18 foot road was in good condition and had a white line down the center. The day was clear, and it is admitted there were no obstructions.
The remainder of his testimony relates to his injuries and suffering resulting from the collision, which injuries are best described by his physicians. Friends took him to Dr. Ferrell, who says his left elbow joint was torn entirely off, and the ends of the bones were crushed; mashed at the joint. He amputated his arm; afterwards the wound scabbed over, but there was and would be tenderness and soreness for several months; that the pain would be severe because the nerves were cut off; "the brain controls the nerves and he still thinks there is pain there, though the injured part is gone." The doctor was of the opinion that Price could wear an artificial member within 18 to 24 months. Other doctors testified to the same effect.
Jarrett, an employe of the Rogers Truck Line, together with Gregory, had been to Evansville and were returning to Shawneetown. He says that as he rounded the curve (he was on the inside), driving on his right side of the road, at no more than 40 miles per hour, the Price car, making about the same speed, approached and when within about 20 feet of his car Gregory called out, "that man is going to hit us." The Price car then came across the center of the road and his "left hand front wheel hit my left hand front wheel." He said that immediately before the impact he did not notice Price "do anything." "I was watching my side; I was not watching him very close; when he got within 20 feet it looked like he tried to swerve to the right." The impact knocked Jarrett unconscious and he remained so until he later woke up in the hospital. It was Jarrett's first trip over the road. His injuries were slight. The Rogers' car was almost completely demolished. On cross-examination Jarrett said that at about 100 feet distant he noted the Price car on its right side of the road, and that he saw Price pull over on his side about the same time Gregory called to him.
Gregory's testimony, in the main, corroborated Jarrett's. He did say that he could see the Price car when the two were "possibly" about 250 feet apart, and at this point he observed Price looking to the right toward the Buchannan home, which was near the roadside, and he did not turn his head until within 20 feet of the Jarrett car. One witness testified as to a mark in the road, observed by him the following morning. He was unable to say just where the accident occurred, and from his description of the mark, which he thought was made by a tire to which the brakes were applied, "or something dragging," it might appear that the collision occurred on Jarrett's side of the road, but the testimony is not persuasive, since the witness is assuming that the mark showed the place of contact.
Other witnesses testifying to the same facts described it likewise. Miss Toombs, with others, was on the porch of the Buchannan home, and saw the Price car pass; she says she was "not noticing particularly," but that "Mr. Price might have glanced at the house, but if he did it was nothing unusual." Another witness on the porch said, as he passed the house "he looked up toward the house, just a natural look." This witness did not note any change in the movement of the Price car, but did notice Price "jerk his car quickly to the right," shortly after it passed the house, but did not change his course. None of them say he was then on the wrong side of the road, at any time.
Price said that as he passed the house he glanced at it and saw some folks there, but kept his course on the right side. There is a pencil sketch which undertakes to show the road, other objects and location of mark and cars after the accident, but it has been of little assistance, since witnesses in undertaking to identify certain spots, would say "about here," and "about there," without, except in one or two instances, making illustrative marks.
At this point, and before we reach technical grounds of procedure, urged as being in error, we take up the one relating to the verdict of the jury. Counsel for appellant contends that the verdict is ...
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Powell v. Commercial Standard Ins. Co.
...v. Belknap H'dw Co., 260 Ky. 123, 84 S.W. (2d) 46; Grocers Biscuit Co. v. Hinton, 264 Ky. 739, 95 S.W. (2d) 571; Rogers v. Price, 290 Ky. 153, 160 S.W. (2d) 371; Pfiester's Adm'r v. Jones, 291 Ky. 151, 163 S.W. (2d) On the whole case we are of the opinion that the proof adduced was insuffic......