Stevens v. Potter

• Decision Date: 19 June 1925
• Citation: 209 Ky. 705
• Parties: Stevens v. Potter.
• Court: United States State Supreme Court — District of Kentucky

209 Ky. 705

Stevens v. Potter.

Court of Appeals of Kentucky.

Decided June 19, 1925.

1. Highways — Denial of Peremptory Instruction on Ground of Contributory Negligence Held Not Error. — Where matter of speed at which plaintiff was traveling was in dispute, denial of peremptory

instruction on ground of contributory negligence was not error.

2. Highways — Testimony Held Properly Excluded on Question of Plaintiff's Speed at Time of Accident. — Testimony that plaintiff was seen traveling at an excessive speed, a quarter of a mile from scene of accident, and that he had previously stated he expected to be in a place 20 miles away in half an hour, held properly excluded on question of his speed at time of accident.

3. Highways — Instruction on Question of Contributory Negligence Held Not Erroneous for Failure to Incorporate Statement of Plaintiff's Duty to Sound Horn if Necessary. — Under Kentucky Statutes, section 2739g-28, requiring automobile drivers to sound horns "whenever necessary," instruction on question of contributory negligence held not erroneous for failure to incorporate statement that plaintiff was required to sound horn, in view of evidence as to necessity therefor.

4. New Trial — Denial of New Trial on Ground of Newly Discovered Evidence Held Not Error. — In action for injuries sustained in automobile collision, as result of defendant's violation of Kentucky Statutes, sections 2739g-34, 2739g-35, denial of new trial on ground of newly discovered evidence held not error, in view of diligence shown, and character of evidence and its probable effect on retrial.

5. New Trial — Newly Discovered Evidence to Justify New Trial Must be Such as Would Likely Produce Different Result. — Newly discovered evidence to justify new trial must be such as to satisfy court that, if heard by jury along with other evidence, a different verdict would result.

Appeal from McCracken Circuit Court.

CROSSLAND & CROSSLAND for appellant.

MOCQUOT, BERRY & REED for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

On March 1, 1923, appellee was driving his automobile in an easterly direction along the Blandville road towards Paducah when he was run into by the automobile of appellant, then being driven by appellant's son, Cary Stevens. Appellant does not question but that he is responsible for any negligence of his son on this occasion. The boy at this time was thirteen years of age, and his driving of this car was in direct defiance of section 2739g-34, Kentucky Statutes, which prohibits any person under fourteen years of age driving an automobile on a public highway at any time or under any conditions. The road at the point where the accident happened crosses a culvert and extends in either direction from the culvert in a straight line for a mile or more. The appellee had crossed the culvert and had gotten his Ford as far to the right hand side of the road as he could — one of his wheels being right next to or in a water furrow, sometimes called in this evidence a ditch, beside the road. Appellant's son was going in a westerly direction. He claims that on account of the lateness in the afternoon the declining sun was shining on the windshield direct in his eyes, for which reason he could not see over ten or fifteen feet ahead unless he looked out the side of his automobile when he could see about thirty or forty feet ahead. Although he was thus blinded, he drove his machine in the middle of the road, the right and left wheels being on either side of the crown, and this in defiance of section 2739g-35 of the Kentucky Statutes, which forbids a person to drive in the middle of the road unless the left side of the road is clear of traffic and presents a clear vision for a distance of at least 150 feet ahead. Appellant's son did not see appellee's car until he was right upon it and then it was too late to avoid the collision. As a result of the collision appellee's car was overturned and he received a very severe fracture to the bones of both legs. On the trial appellee recovered a verdict of $1,000.00, to reverse which this appeal is brought.

Appellant first insists that he was entitled to a peremptory instruction because of appellee's alleged contributory negligence. It seems to be appellant's theory that the evidence showed appellee at the time of the collision was going at an excessive rate of speed. This matter of speed was in dispute, as appellee's testimony indicated that he was going to a reasonable rate of speed. Hence it is manifest that appellant was not entitled to the peremptory instruction requested. We may also say that we do not see how the collision could have been averted had appellee been standing still, for he was over on the right hand side of the road as far as he could get according to all of the testimony in this case, and it is plain that the collision was caused by appellant's son driving down the middle of the road without being able to see where he was going.

Appellant next insists that the...