Schulze Baking Co. v. Daniel's Adm'r

• Decision Date: 03 December 1937
• Citation: 112 S.W.2d 1011,271 Ky. 717
• Parties: SCHULZE BAKING CO. et al. v. DANIEL'S ADM'R.
• Court: Kentucky Court of Appeals

112 S.W.2d 1011

271 Ky. 717

SCHULZE BAKING CO. et al. v. DANIEL'S ADM'R.

Court of Appeals of Kentucky

December 3, 1937

Rehearing Denied Feb. 25, 1938.

Appeal from Circuit Court, Campbell County.

Action by Durwood C. Daniel, administrator of the estate of James A Daniel against the Schulze Baking Company and another. Judgment for plaintiff, and defendants appeal.

Reversed with directions.

Harry B. Mackoy, of Covington, for appellants.

Odis W Bertelsman, of Newport, and Ben Berkowitz, of Cincinnati Ohio, for appellee.

THOMAS Justice.

On May 2, 1935, James A. Daniel resided at No. 152 on the south side of Fairfield avenue in the town of Bellevue, Ky. Its location is 126 feet west of Berry avenue and 50 feet east of Hallam street which entered Fairfield avenue from its north side but does not cross it. The appellant and defendant below, Schulze Baking Company, is a corporation engaged in the bakery business in the city of Cincinnati, Ohio, across the river form Bellevue. Mike Decker, a joint defendant and joint appellant, was in the employ of the corporate defendant as a driver of one of its trucks in delivering its bread to its customers at Kentucky points across from Cincinnati. Fairfield avenue, along the territory mentioned, is 66 feet wide, 26 feet of which (13 feet on either side) is taken up with sidewalks, leaving a space for vehicular travel of 40 feet. In the center of that space are two street railway tracks. Over the south one ran cars going east, and the north one carried cars going west. At the mouth of Hallam street where it enters Fairfield avenue was a stopping point for street cars going west and which stopped on the east side of the junction of those two streets, making the car when so stopped almost opposite the residence of Daniel. The accident resulting in his death happened about 6:30 a. m., immediately in front of his house near the south curb.

Daniel was a man 67 years of age, active, and in full possession of all of his faculties. His employment at the time, and for a long while prior thereto, was with a railroad company in Cincinnati, Ohio, and his duties were the cleaning of freight cars after they had been emptied preparatory for loading for an outgoing trip. The first street car going across the river into Cincinnati on Fairfield avenue ran at about the hour indicated above, and it always stopped at the east edge of Hallam street. Decker was making a trip with a small truck, 6 feet wide from the outside fenders and 14 feet long, which was loaded with bread to be delivered to customers in Latonia, Ky. He was traveling east on his right side of Fairfield avenue, which was the south side. Just before reaching the front of Daniel's residence, he passed a street car on the south car track in Fairfield avenue going the same direction he was traveling, and at about the same time the street car above referred to going west stopped at Hallam street. A few moments before reaching the spot immediately in front of Daniel's residence, he, Daniel, came out of his house with some tin cans which the witnesses concluded were garbage cans. He went near to the outer edge of the sidewalk in front of his residence and set them down on the sidewalk. Decker was something like 20 feet from that point at the time Daniel sat his load upon the sidewalk near the curb, which was 7 inches higher than the bottom of the gutter next to it. Just as Decker attempted to pass him, distanced some two or three feet from the sidewalk, Daniel stepped out into the street and came in contact with the side of the truck and was knocked down, with sustained injuries resulting in his death. The truck was traveling, according to the evidence, practically if not entirely undisputed, at a speed not exceeding 20 miles an hour. At the instant that Decker was passing Daniel, he observed that Daniel was leaving the sidewalk and entering upon the street, and he, Decker, turned his truck to the left, but it was too late to prevent decedent from colliding with the side of the truck.

The appellee, Durwood C. Daniel, qualified as the administrator of his father, James A. Daniel, and later filed this action in the Campbell circuit court against defendants and appellants here, seeking the recovery of a judgment against them for $2,999 as damages to decedent's estate for alleged negligence in the destruction of his life. The negligence, as alleged in the petition, was general. It charged that Decker, as the servant of his co-defendant, operated the truck at the time with gross negligence and carelessness, and in that manner brought about the collision with decedent resulting in his death. The answer denied the negligence charged, and pleaded contributory negligence on the part of the decedent. Its denial formed the issues, and upon trial the jury, under instructions submitted to it, returned a verdict in favor of plaintiff against both defendants for the full amount sued for. Their motion for a new trial was overruled, and from the verdict and judgment pronounced thereon they prosecute this appeal. A number of alleged errors were contained in the motion for a new trial, many, if not all of which, are argued in brief of learned counsel for defendants on this appeal, but the chief ones relied on are: (1) Error of the court in giving instructions A and B offered by counsel for plaintiff, to the giving of which defendants objected, but which the court overruled and to which they excepted; and (2) that the court erred in overruling defendants' motion for a directed verdict in their favor, made at the close of plaintiff's testimony and at the close of all the testimony, and to which they excepted.

The chief objection to instruction A was that it submitted to the jury the requirement on the part of Decker to signal his approach to Daniel by blowing the horn of his truck as it neared the spot where the collision occurred, while instruction B is criticised because it erroneously submitted the speed at which the truck was traveling at the time of the infliction of the injury to Daniel. It told the jury that if it believed from the evidence the truck was traveling at a speed greater than 15 miles per hour and its speed was the direct and proximate cause of the injury, then it should find for plaintiff and assess the damages in accordance with another instruction defining the measurement of the damages, and to which no objection is urged. We have concluded that under the facts disclosed it will be unnecessary to discuss any of the other grounds argued by learned counsel than the ones mentioned, and they will be considered in the order named.

1. The criticism of the portion of instruction A referred to is based upon the fact that Daniel was never in peril from the movements of the truck until he suddenly stepped from the sidewalk onto the street as the truck was passing him, and that the situation was not one that the driver of the truck was called upon to signal his approach. The ground for the criticism of instruction B is that section 2739g-86 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes was in force at the time, it being section 7 of chapter 106 of the Acts of 1932, and it limits the speed of trucks of the weight of the one involved here at 20 miles per hour while traveling in incorporated cities. That section had the effect, as we held in the case of Hopper v. Barren Fork Coal Company, 263 Ky. 446, 92 S.W.2d 776, to repeal a prior section of our statutes (2739g-51) prescribing a maximum speed of only 15 miles per hour at such places for the character of truck here involved. Clearly, the instruction here involved (B) was therefore erroneous, but whether prejudicially so or not we will not now determine, because of the conclusions we have reached with reference to ground (2) later to be considered and determined. Likewise, we are inclined to the opinion that the submission in instruction A of the failure of the driver of the truck to signal his approach was erroneous because, as stated, the situation did not develop into one calling for or requiring such signal; but this error may also be put aside because of the conclusion reached with reference to ground (2), supra, to which we will now direct our attention.

2. The determination of this ground requires a summary of the evidence heard at the trial. As hereinbefore stated, Decker was traveling at a speed not exceeding 20 miles per hour. One witness, in giving his opinion as to the speed, said: "I judge he was going between 15 and 25 miles, somewhere along there. *** There was nothing noticeable in his speed." That witness was the only one out of four or five who testified as to the speed and who placed it (doubtfully) beyond 20 miles per hour; a majority of them fixing it at a lower rate than 20 miles per hour. We, therefore, conclude that it may safely be said that the speed did not exceed 20 miles per hour, and most probably less than that. The space between the south street railway track immediately in front of Daniel's residence (and all along the south side of Fairfield avenue) was 12 feet wide, but street cars projected over that distance one foot, leaving a clear space for the travel of vehicles of 11 feet. The truck occupied, as we have said, but 6 feet of that width, leaving an unoccupied distance of that 11 feet space (even if a street car was passing immediately in front) of 5 feet. The truck was some two or three feet from the curb, and immediately after making the turn to save Daniel from the perilous position into which he was entering when he left the sidewalk, it was turned by the driver so as that its left wheels entered upon the south side of the eastbound railway track.

Four eyewitnesses testified as to how the accident occurred besides Decker; he being the fifth one....