Shinkle v. McCullough

• Decision Date: 03 December 1903
• Parties: SHINKLE v. McCULLOUGH.
• Court: Kentucky Court of Appeals

77 S.W. 196

116 Ky. 960

SHINKLE v. McCULLOUGH.

Court of Appeals of Kentucky.

December 3, 1903

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by William T. McCullough against Clifford Shinkle. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. A Price, for appellant.

John W Henver and M. H. McLean, for appellee.

BURNAM C.J.

Whilst the appellee, W. T. McCullough, was driving along a public highway leading from the city of Covington on the 29th of August, 1901, with two companions, he met the appellant Clifford Shinkle, riding in an automobile. Appellee's horse became frightened at the automobile, and upset his vehicle, throwing him upon the turnpike road, inflicting injuries to his clothing and person, and permanently impairing the vision in one eye. For these alleged injuries he instituted this action for damages, and alleged that the defendant, while in sight and approaching him, had recklessly and negligently propelled his automobile at a rapid and dangerous rate of speed up to and within 25 feet of his horse, notwithstanding the fact that he saw, or could have seen, that plaintiff's horse had become frightened, and in disregard of repeated warnings to slacken his speed, and that by reason of defendant's refusal to heed these warnings his horse became frightened, and, in his efforts to escape, turned over his buggy, inflicting the injuries complained of. The defendant, in his answer, denied all the allegations of negligence recited in the petition, and pleaded contributory negligence. Upon the trial of the case before a jury, the testimony introduced by the plaintiff was to the effect that the defendant was traveling at a very high rate of speed (some of the witnesses put it at as high as 20 miles an hour); that the motive power was gasoline mixed with air, which made a noise, when the machine was in operation which could be heard at a distance of about 200 feet; that as soon as the plaintiff's horse heard this noise it began to take fright, and plaintiff and those with him at once began to shout and signal to the defendant to slacken his speed, but that he failed and refused to do so until he had driven the automobile to within 30 or 40 feet of plaintiff by which time his horse became so unmanageable as to upset the buggy; that the defendant saw that the horse was frightened, and the plaintiff's peril. The testimony on the other hand was that the defendant saw the plaintiff for about 200 feet driving along, apparently paying no attention to the approach of the automobile, the horse being apparently perfectly quiet; that, when he got within about 100 feet of the plaintiff, the horse suddenly shied, upsetting the buggy in the middle of the road; and that the defendant immediately slowed down his automobile, alighted therefrom, and went to assist the plaintiff. He also testified that the customary signal to slacken speed, by holding up the hand, was not given, and that as soon as he discovered the peril of plaintiff he stopped his machine, and that he was not going at exceeding 6 or 7 miles an hour. The trial resulted in a verdict and judgment for the plaintiff for $1,020, and the plaintiff has appealed. ...