Sandmann v. Sheehan
| Decision Date | 20 June 1939 |
| Parties | SANDMANN v. SHEEHAN et al. SAME v. CHOPE et al. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Oct. 3, 1939.
Appeal from Circuit Court, Jefferson County, Common Pleas, Third Division; William H. Field, Judge.
Action by William D. Sheehan against Leo J. Sandmann to recover for damages to his automobile in a collision with an automobile of the defendant, for loss of the automobile's use, and for personal injuries, wherein the defendant filed a counterclaim and cross-petition seeking to recover damages for injuries to his automobile and for the loss of its use and against the city of Louisville on ground that traffic light at intersection where collision occurred was not working at the time of the collision. Action by John F. Chope against Leo J. Sandmann to recover for injuries sustained by him while a guest in the automobile of William D. Sheehan wherein Leo J. Sandmann filed a cross-petition against William D. Sheehan and against the city of Louisville. A demurrer to the paragraph in each case containing the cross-petition against the city of Louisville was sustained and the cross-petition in each case was dismissed. The jury returned verdicts against Leo J. Sandmann in favor of William D. Sheehan and John F. Chope, and the defendant appeals from the judgment in each case dismissing his cross-petition against the city of Louisville and from the judgment in the action by John F. Chope, and files a motion for an appeal in the action by William D. Sheehan.
Judgments dismissing the cross-petitions affirmed, judgment in the action by John F. Chope affirmed, motion for appeal overruled, appeal denied, and judgment affirmed in the action by William D. Sheehan.
James Boswell Young, of Louisville, for appellant.
Joseph Lazarus, H. O. Williams, and Gavin H. Cochran, all of Louisville, for appellees.
This litigation arose out of an automobile collision at the intersection of Burnett and First streets in Louisville Kentucky, October 13, 1936. Appellant, Leo J. Sandmann, was driving an automobile west on Burnett street, and appellee William D. Sheehan was proceeding north on First street. Appellee John F. Chope was a passenger in Sheehan's car. The two automobiles collided at the intersection, and Sheehan and Chope were injured. At the time of the accident, an overhanging, four-way intersection light was maintained at this point by the city. Sheehan brought an action against Sandmann to recover $75 damages to his automobile, $40 for loss of its use, and $216 for personal injuries, or a total of $331, all of which he alleged was caused by the negligence of the defendant. Chope also brought an action against Sandmann to recover damages for the injuries sustained by him. In the Sheehan case the defendant filed an answer, counterclaim, and cross-petition in five paragraphs. Paragraphs 1 and 2 traversed the averments of the petition, and paragraph 3 was a plea of contributory negligence. Paragraph 4 was a counterclaim in which the defendant sought to recover from the plaintiff damages in the sum of $140 for injuries to his automobile and loss of its use. Paragraph 5 was a cross-petition against the city of Louisville in which the defendant alleged that the traffic light at the intersection of Burnett and First streets was out of order and not working east and west on First street at the time of the accident, but was working north and south on Burnett street and was yellow, changing from green to red north and south; that the condition of the traffic light was known to the city and but for the failure of the light to be in proper working order the accident would not have occurred; that all damages sustained by plaintiff and defendant were caused by the carelessness and negligence of the city in failing to keep the traffic light in repair. The defendant sought to recover damages from the city in the sum of $140 for injuries to his automobile and loss of its use, and, in addition thereto, "such sum in damages as may be awarded against the defendant in favor of the plaintiff herein." In the Chope case the defendant filed an answer and cross-petition in four paragraphs. Paragraph 1 was a traverse, paragraph 2 was a plea of contributory negligence, paragraph 3 was a cross-petition against William D. Sheehan, and paragraph 4 was a cross-petition against the city of Louisville similar to paragraph 5 of the answer, counterclaim, and cross-petition in the Sheehan case. A demurrer to the paragraph in each case containing the cross-petition against the city of Louisville was sustained, and the cross-petition in each case was dismissed. The two cases were tried together, and the jury returned verdicts against defendant, Sandmann, for the plaintiffs William D. Sheehan and John F. Chope for $100 and $600, respectively. The defendant has appealed from the judgment in the Chope case and has filed a motion for an appeal in the Sheehan case. He has also appealed from the judgment in each case dismissing his cross-petition against the city of Louisville. The appellee Sheehan has filed a motion to dismiss the appeal as to him on the ground that this court is without jurisdiction since the judgment is for less than $200. The appellant counterclaimed against Sheehan for $140, and the jury found nothing for him on his counterclaim. The amount in controversy so far as he is concerned is $240. The motion to dismiss the appeal is therefore overruled.
Appellant seeks reversal of the judgments on the ground that the proof fails to show any negligence on his part and therefore his motion for a directed verdict in his favor should have been sustained, and on the further ground that the court failed to give the whole law of the case when instructing the jury.
The accident happened about 5 o'clock in the afternoon. There was only one eyewitness, aside from the three...
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