Sheetinger v. Dawson

• Decision Date: 16 December 1930
• Citation: 236 Ky. 571
• Parties: Sheetinger v. Dawson.
• Court: United States State Supreme Court — District of Kentucky

236 Ky. 571

Sheetinger v. Dawson.

Court of Appeals of Kentucky.

Decided December 16, 1930.

1. Trial. — In automobile collision case, trial together of husband's and wife's actions held error, notwithstanding instruction to disregard evidence of one plaintiff in considering other's case.

2. Trial. — Instruction that motorist should not attempt to pass vehicle passing another automobile held not objectionable as giving undue prominence to fact in issue (Ky. Stats., secs. 2739g-35 and 2739g-36).

Negligence. — Negligence of father dirving automobile could not be imputed to child suing for injuries sustained in collision.

Appeal from Woodford Circuit Court.

POLK SOUTH, Jr., and FIELD McLEOD for appellant.

H.A. SCHOBERTH, WILL D. JESSE and W.C. MARSHALL for appellees.

OPINION OF THE COURT BY COMMISSIONER STANLEY

Reversing in part and affirming in part.

On Sunday afternoon, June 24, 1928, near the entrance to the home of former Senator Camden, between Frankfort and Versailles, there was a collision of the automobiles of A.B. Dawson and the appellant, Charles J. Sheetinger. Dawson was accompanied by his wife and little girl, all three of whom suffered painful injuries. Separate suits were instituted by them against Sheetinger, which were tried together over his objection. The jury returned a verdict in favor of Mrs. Dawson for $2,000, and the child, Imogene Dawson, for $1,000. They found for the defendant in Mr. Dawson's case, on the ground, as recited in the verdict, that he was contributorily negligent. Appeals are prosecuted by the defendant from the two judgments rendered against him.

The evidence introduced by the plaintiffs tended to prove that Dawson was driving his car eastwardly at slow speed and that the collision was due wholly to the attempt by Sheetinger to pass a car going in the same direction, resulting in the collision when both his machine and that of Dawson veered to the north, or to Dawson's right. The evidence introduced by the defendant tended to prove that the Dawson car was being driven in a reckless manner and in a zigzag fashion, and that it skidded sideways into the defendant's car on the south side of the road. The evidence therefore was such that the jury might have found either way.

One of the grounds urged for a reversal is that the court, with a special judge presiding, erred to the defendant's prejudice in trying the cases together over his objection. The practice of trying cases together when they arise out of the same facts and the parties are substantially the same is not only proper, but should be encouraged, unless there is objection and it appears that some undue advantage may be obtained by one side or the other by reason of the joint trials. The subject is discussed fully in Benge's Adm'r v. Fouts, 163 Ky. 796, 174 S.W. 510. Other cases on the subject are: Reid v. Nichols, 166 Ky. 423, 179 S.W. 440; Paducah Traction Co. v. Walker's Adm'r, 169 Ky. 721, 185 S.W. 119; Waller v. Lee County, 187 Ky. 848, 220 S.W. 1071; Farrar v. Hank, 205 Ky. 89, 265 S.W. 487; Herndon v. Ky. T. & T. Co., 214 Ky. 36, 281 S.W. 1036

In the most pertinent case, Benge's Adm'r v. Fouts, supra, there were two claims for services being asserted against a decedent's estate. Each party was a competent witness for the other, but it was pointed out that on a joint trial neither could be excluded from the courtroom and that in testifying one for the other the relations of each of them with the deceased and the other claimant were so involved as to make it necessary that each witness should state many facts bearing on and supporting her own case; and further that with a common interest and each having heard the other testify she could have strengthened her own testimony.

It was held to be error prejudicial to the substantial rights of the defendant to have tried the cases together, and the judgments were reversed on that ground. Here the husband was a competent witness for himself but not for his wife. But in testifying for himself he was in fact also testifying for her. Being the driver of the car, he was in a better position than his wife to know the facts as to the collision and its cause. Though the trial court very clearly and emphatically admonished the jury during the progress of the trial, and also...