Searcy v. Golden

• Decision Date: 02 November 1916
• Citation: 188 S.W. 1098,172 Ky. 42
• Parties: SEARCY v. GOLDEN (TWO CASES).
• Court: Kentucky Court of Appeals

188 S.W. 1098

172 Ky. 42

SEARCY v. GOLDEN (TWO CASES).

Court of Appeals of Kentucky.

November 2, 1916

Appeal from Circuit Court, Carroll County.

Consolidated actions, by Hubert Allen Searcy, by next friend, and by T. C Searcy, against F. M. Golden. From a judgment for defendant plaintiffs appeal. Appeal of T. C. Searcy dismissed without prejudice, and judgment against Hubert Allen Searcy reversed and remanded for further proceedings consistent with the opinion.

J. A Donaldson & Sons, of Carrollton, for appellants.

F. C. Greene, of Carrollton, and Turner & Turner, of New Castle, for appellee.

MILLER C.J.

The appellee, F. M. Golden, owned and operated an automobile in connection with his livery stable, at Carrollton. On July 4, 1913, the appellant Hubert Allen Searcy, a boy 17 years of age, was traveling horseback on a public road leading from Ghent to Sanders. The mare he was riding was about 3 years old, and belonged to T. C. Searcy, a brother of Hubert Allen Searcy. The mare became frightened at an automobile passing in the same direction and driven by Loraine Breek, Golden's automobile, filled with passengers, was driven by Chester Wiley, a boy 19 years old, and was following Breek's automobile closely. Both automobiles and Searcy were going to the Sanders Fair; and, according to Sebree, a passenger on the front seat of the Breek car, the automobiles were racing, the Golden car was trying to pass the Breek car. Dean, another passenger in the Breek car, testified that the Golden car had tried to pass the Breek car two or three times. As Breek passed Searcy and saw his mare was frightened, he, or Strebling, a passenger, called to Searcy, "Look out, another car is coming," or, "Look out behind," referring to Golden's automobile. According to Sebree the cars were then only half a city block (200 feet) apart; but according to Wiley they were 200 yards apart, although Wiley further testified that he heard the call to Searcy to look out for the car coming behind him.

Wiley admits that when he first saw the mare she was frightened, and standing on the side of the road immediately after the Breek car had passed, when Williams, a passenger sitting on the front seat with Wiley, told him "to lay over" to the side of the road so as to avoid striking the mare. The mare, however, became still more frightened at the approaching automobile, ran backwards, striking the machine and throwing Searcy to the ground. The mare's leg was broken and she had to be killed.

Williams, who was riding in the front seat with Wiley in Golden's automobile, and had therefore the best opportunity of seeing what occurred, described the accident as follows:

"When we got to the top of the hill, near Mr. Parker's, the machine in front of us scared a horse and it ran into the fence. It was standing just across the road, up against a fence; and I motioned to the boy and told him to lay over, just before we got to him. The mare was running back with him and struck the machine; and, before we were aware of it, after warning him, the mare reared up on its hind legs, the machine struck her on the hind leg, and the boy went off. The machine stopped and I went back and picked the boy up and took him to Parker's and left the mare where she was. If the horse hadn't gotten scared and run back it would not have happened."

These two actions, the first by Hubert Allen Searcy for $1,000 damages for personal injuries, and the other by T. C. Searcy for $250, the value of the mare, are the results of the accident. In each case the petition lays the action upon three acts of negligence: (1) That Wiley gave no warning of his approach; (2) that he was running his car at an unreasonable speed; and (3) that he recklessly ran into the mare. The cases were tried together; and the jury, describing the collision as an "unavoidable accident," found for the defendant in each case. From a judgment upon the verdict, each plaintiff prayed and was granted an appeal, by the circuit court.

As the appeal of T. C. Searcy involved only $250, and was granted by the circuit court, which was without jurisdiction to do so, it will have to be dismissed upon the authority of Childers v. Ratliff, 164 Ky. 123, 175 S.W. 25. His remedy is by a motion for an appeal, to be made in this court. Omar-Bowling Green Stone Co. v. L. & N. R. R. Co., 169 Ky. 832, 185 S.W. 118. The appeal of Hubert Allen Searcy is, however, properly here, and will be now considered.

The accident having occurred on July 4, 1913, it is controlled by the act of 1910 relating to motor vehicles, which was then in force. See Acts 1910, p. 242. For a reversal it is insisted: (1) That the verdict is not sustained by the evidence; and (2) that the instructions were erroneous. There is the usual conflict in the evidence respecting the speed of Golden's automobile, and whether it gave an adequate warning of its approach. There is a slight curve in the road near the place where the accident occurred, but it is not made clearly to appear whether defendant's automobile was passing or had passed this curve at the time of the accident; and, there is no evidence that Wiley stopped the defendant's automobile after he had discovered that the mare had become frightened. On the contrary, Wiley admits that when he first saw the mare she was frightened, and he does not claim that he stopped his automobile before the accident. Furthermore, it appears from the testimony of other witnesses that the Golden car went beyond the place where the mare was hit before it stopped, and that its fender was broken and its axle bent by the impact.

Section 9 of the act of 1910 prohibited any one from driving an automobile upon a public highway at a speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb or injure the property of any person. It fixed a maximum speed limit in the country of 20 miles an hour for a distance of one-fourth of a mile; and, if the speed should exceed that rate, it should be prima facie evidence that the automobile was running at a rate of speed greater than was reasonable and proper, having regard for the traffic and the use of the way, or so as to endanger the life and limb or injure the property of any person. That section further provided a maximum speed of 8 miles an hour where the automobile was going around a corner, curve, or crossing a highway, where the operator's view of the road traffic was obstructed, and that a speed exceeding 8 miles under those conditions should be prima facie evidence that it was unreasonable, having due regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person. And section 10 of the act further provided as follows:

"Whenever it shall appear that any horse ridden or driven by any person upon any of said roads, streets, or highways is about to become frightened by the approach of any such motor vehicle, it shall be the duty of the person driving or conducting such motor vehicle to cause the same to come to a full stop until such horse or horses shall have passed."

Upon the question of the speed of defendant's automobile at the time of the accident, Wiley testified that he was going from 10 to 12 miles an hour, while other witnesses testified that Wiley was going from 20 to 35 miles an hour; and, as heretofore stated, while Wiley said he was 200 yards behind Breek's automobile, Sebree testified that he was only half of a city block, or 200 feet, behind him. But there is no controversy about the fact that Wiley saw Searcy's horse was frightened, and that he did not stop the machine as required by section 10 of the statute, supra. As above stated, Wiley himself admitted that when he first saw the mare he saw she was frightened, and he does not claim that he stopped his machine or even decreased the speed at which he was then traveling. The statute then in force was, however, peremptory in its terms and required Wiley to come to a full stop. See, also, Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N.E. 615, 1 L. R. A. (N. S.) 238, 6 Ann. Cas. 656; McIntyre v. Orner, 166 Ind. 57, 76 N.E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087.

Under this view of the case the verdict is not sustained by the evidence; on the contrary, it is directly opposed to the evidence.

The first instruction is criticized because, instead of requiring the defendant to run at a reasonable and safe rate of speed by not exceeding 20 miles an hour, for one-fourth of a mile, or 8 miles an hour while driving around a curve, it left it to the jury to say whether the defendant was driving his automobile at a reasonable and safe rate of speed, without mentioning the provisions of the statute, or placing his negligence upon...