Straughan's Adm'R v. Fendley
| Decision Date | 18 December 1945 |
| Citation | 301 Ky. 209 |
| Parties | Straughan's Adm'r v. Fendley. |
| Court | United States State Supreme Court — District of Kentucky |
2. Appeal and Error; Trial. — In action for death of pedestrian on highway struck by defendant's automobile approaching at night from the rear, where contributory negligence was pleaded and it was not shown that pedestrian fell involuntarily into path of automobile, instruction on sudden appearance was prejudicial error.
3. Automobiles. — Defendant motorist is not entitled to an instruction on "sudden appearance" unless it be shown that pedestrian slipped, fell, or was propelled into path of automobile involuntarily or in action by adults when contributory negligence is not pleaded, and otherwise the theory of sudden appearance is sufficiently presented by a contributory negligence instruction.
4. Appeal and Error. — In action for death of pedestrian on highway struck by an automobile approaching from the rear, instruction that pedestrian had duty to use ordinary care to discover approach of defendant's automobile and to keep out of its way and to walk on the left side of highway in direction he was traveling was not prejudicial under the evidence. KRS sec. 189.570.
5. Automobiles. — Pedestrian walking along highway had duty to use ordinary care to observe the approach of an automobile and to keep out of its way.
6. Automobiles. — In action for death of pedestrian struck by defendant's automobile while walking along highway, evidence warranted instruction that ordinary care to be exercised by pedestrian meant degree which ordinarily prudent persons "if sober" usually exercise under similar circumstances.
7. Negligence. — Voluntary intoxication will not excuse want of due care.
8. Automobiles. — If pedestrian who was struck by automobile on highway was under influence of intoxicants to extent making him incapable of exercising degree exercised by sober and ordinarily prudent persons under similar circumstances and his intoxication contributed to bringing about his injury, motorist would not be liable therefor.
Appeal from Oldham Circuit Court.
D.E. Wooldridge for appellant.
J. Ballard Clark and Thos. F. Manby for appellee.
Before J. Wirt Turner, Judge.
Reversing.
Elihue Straughan met death by being struck by a car owned and driven by appellee on U.S. Highway No. 42, at near midnight, August 9, 1942. A trial resulted in a verdict for defendant; on appeal the questions presented relate to instructions, it being contended that in several instances those given were erroneous and prejudicial. Under these circumstances it will be necessary to give a brief review of the proof.
Appellee had spent the evening with friends at LaGrange, and was returning to his home at Goshen, in a westerly direction. He testified that his car with respect to brakes, tires and lights, was in good condition, and that at the time of the injury he was driving on his right side of the road at a speed not more than 35 miles per hour. The road over which Fendley was driving was practically level for quite a distance and without obstructions. Fendley had just rounded a slight curve into the straightaway when he observed an approaching car; he dimmed his lights, but could not say whether the oncoming car lights were dimmed. He had driven some distance when he struck Straughan. He says that he did not see any object in the road until just a moment before the impact, or when his car was about 4 feet from the object. Fendley says that he was keeping a lookout ahead and at no time saw an object on the road, until just a moment after the other car had passed; that the lights from the oncoming car momentarily interfered with his vision. He said that with his lights dimmed he could see for a distance of 200 feet. From his proof it would seem that his theory was that Straughan, in an effort to cross from one side of the road to the other, stepped into the path of his car.
According to proof by two of the passengers riding in the car driven by Jumper and meeting Fendley's car, the Jumper car had first passed Straughan and the Fendley car, as estimated by them from two or three car lengths, when they heard the impact. Fendley testified that he did not apply his brakes before the impact, but did so immediately thereafter and stopped in about 20 to 25 feet. One of the occupants of the Jumper car testified that as they approached the Fendley car they saw a man in the road at a distance of 75 to 80 feet. Two occupants of that car, as best we can gather, saw him (at a lesser estimated distance) walking in the same direction as the Fendley car was going, at first near the black line center. As they came nearer it seemed to them that Straughan was undertaking to get on the other side of the road. These witnesses say he was walking in a zigzag manner, or from one side of the center to the other. One of the passengers in the Jumper car, testifying for appellant, said she saw Straughan at a distance of about 30 feet as they approached the Fendley car, walking near the black line on the left side of the road. This witness did not see him zigzagging, but makes it appear that he "wandered" from one side of the road to the other.
After both cars stopped, the occupants, including Fendley, went back to the place of impact, and found a hat and shoe, one or the other being near the black line, the other near the edge of the concrete; they also found glass in the road, which came from the broken headlight on the right side of Fendley's car. The physical evidence showed that Straughan had been struck by the headlight inside the fender, and his body thrown onto the hood, making a good-sized dent, then carried for a short distance, falling off into a ditch on the side of the road. Straughan's left leg was broken; his neck broken; the back of his head badly crushed, and he had bruises on his back and shoulders.
It was shown that Straughan, who had been at a roadhouse during the evening, left in an automobile with several other persons, and was let out at the intersection of the Westport road and Highway 42 at near midnight, and was on his way to his home when the accident occurred. There was some evidence that he had been drinking, though one of his companions who left him on Highway 42 said he could walk all right. Fendley admitted that before dinner at his friend's house, at about eight o'clock, he had one highball. There are other details which might be given and which may have been more or less material on the trial, but we deem our recital sufficient to determine the controversial questions.
The bill of exceptions shows that "on motion of plaintiff the court instructed in writing, with instructions 1 to 6 inclusive, and on motion of defendant instructed the jury in writing with instructions 7 to 10," inclusive. Plaintiff objected to the giving of the last four instructions. Plaintiff offered an instruction marked "2" and one marked "7" which was apparently offered in lieu of No. 7.
Instruction No. 2, offered by plaintiff and rejected, had reference to the speed, that is, requiring the defendant to operate his car at a reasonable speed, having regard for the traffic &c. This was omitted from instruction No. 1, defining the duties of Fendley in the operation of his car, tendered by plaintiff and given. Fendley had testified that he was not exceeding a speed of 35 miles, and this was the general opinion of those persons who were in the approaching car. He also testified that he had at no time applied or made effort to apply his brakes until after the impact. Under these circumstances there was no occasion for an instruction as to speed. The only conceivable object to be accomplished by a slowing of speed was to enable Fendley to stop in time to avoid striking Straughan; speed had nothing to do with the injury.
Before taking up other objections we take up Instruction No. 10, which in substance was what has become to be known as the "sudden appearance" doctrine. Counsel for appellee insist that the instruction was proper, and was taken from Fork Ridge Bus Line v. Matthews, 248 Ky. 419, 58 S.W. 2d 615. In writing Dixon v. Stringer, 277 Ky. 347, 126 S.W. 2d 448, in which in a measure we departed from the sudden appearance rule, we mentioned the Matthews case as being one which had caused some confusion in the minds of courts and the profession. We went into the...
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