Sutherland v. Davis

• Decision Date: 27 May 1941
• Parties: SUTHERLAND v. DAVIS.
• Court: Kentucky Court of Appeals

151 S.W.2d 1021

286 Ky. 743

SUTHERLAND v. DAVIS.

Court of Appeals of Kentucky

May 27, 1941

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; Eugene Hubbard, Judge.

Action by Jimrose Elliott Sutherland against J. R. Davis for personal injuries. From a judgment for defendant on a directed verdict, plaintiff appeals.

Affirmed.

Woodward Dawson & Hobson, of Louisville, for appellant.

Krieger & Huffaker, of Louisville, for appellee.

VAN SANT, Commissioner.

Appellant Mrs. Jimrose Elliott Sutherland, was severely and permanently injured when appellee Davis, driving the automobile in which she was a passenger, sideswiped another car, ran off the road, and crashed into a tree.

Appellant instituted this action in the Jefferson circuit court seeking damages for the injuries sustained and alleging that they were the direct result of negligence upon the part of appellee. By answer appellee denied the allegations of the petition and pleaded that appellant was guilty of contributory negligence, which issue was joined by reply.

At the conclusion of the evidence for the plaintiff, the defendant moved the court to peremptorily instruct the jury to return a verdict in his favor which motion was overruled and exception taken thereto. At the conclusion of all the evidence said motion was renewed and sustained by the court to which ruling of the court the plaintiff excepted. Appeal has been duly perfected to this court, and, as the sole ground for reversal, appellant urges that there was sufficient conflict in the evidence to submit to the jury the question as to whether appellee was under the influence of intoxicating liquor at the time of the accident to such an extent as to render him incapable of operating his automobile in a proper manner. The ruling of the trial court was based upon the conclusion that since appellant testified to facts, which if taken as true, would bar a recovery by her, she was thereby precluded from introducing or relying on other evidence in the case contradicting her testimony but substantiating her claim.

The assumption of risk of a danger amounts to contributory negligence so as to bar recovery when the injured person is aware of the conditions which create the danger and in addition thereto appreciates in his own mind the danger attendant upon such conditions. Cincinnati, N. O. & T. P Ry. Co. v. Thompson, 6 Cir., 236 F. 1. Where the danger attendant upon the conditions is a matter of common knowledge it will be conclusively presumed that the injured person appreciated the danger.

In W. F. Robinson & Son v. Jones, 254 Ky. 637, 72 S.W.2d 16, 19, the court said: "It is known of all men that the drinking of intoxicating liquor, though it be not done to an extent of actual intoxication, begets a spirit of recklessness, and is responsible for numerous accidents."

In Winston's Adm'r v. City of Henderson, 179 Ky. 220, 200 S.W. 330, 332, L.R.A.1918C, 646, it was said:

"One who voluntarily permits himself to be driven about the streets in a motorcar operated by a drunken chauffeur does not exercise ordinary care for his own safety, and he assumes the danger incident to such drive when he voluntarily places himself in a car which is managed and controlled by an intoxicated driver. This is not because of the imputed negligence rule, but because of the personal negligence of the passenger. ***

"Even while prosecuting a journey if the driver becomes intoxicated so as to lose control of the vehicle, or is reckless, and this is known to the passenger, ordinary care requires the passenger to call upon the driver to stop and allow him to alight, or turn the management of the vehicle over to another capable of properly directing it, and if the passenger fails to exercise such care and is injured as a result of the negligence or recklessness of the driver and a third person, he may not have recourse of such third person, this being denied him because of his own negligence rather than upon the ground that the negligence of the driver is imputed to him." In the usual case it is the province of the jury to determine whether a driver is under the influence of intoxicants at the time of the accident to such extent as to render him incapable of properly operating the automobile, and whether his passenger had any cause in the exercise of ordinary care to ascertain the condition of the intoxicated driver or to be apprehensive of his own safety in continuing riding with a driver who had become intoxicated. Toppass v. Perkins' Adm'x, 268 Ky. 186, 104 S.W.2d 423. But where the uncontradicted evidence shows the driver to be intoxicated and the passenger was acquainted with such fact, or in the exercise of ordinary care could have become acquainted with such fact, or where the evidence is such that no other reasonable conclusion could be drawn therefrom, the question is not to be determined by a jury but is to be determined by the court under proper application of the law. Rennolds' Adm'x v. Waggener, 271 Ky. 300, 111 S.W.2d 647. With these precepts in mind we will look to the evidence to determine the propriety of the trial court in sustaining the motion for a peremptory instruction.

Mrs Sutherland and Mr. Davis met either in a tavern or on the street near the intersection of 4th and Gaulbert in Louisville at about 1:30 P. M. on the afternoon of November 20, 1939. They drove to the Bardstown road and proceeded thereon through the town of Buechel, approximately 4 miles southeast of Louisville, thence to Mt. Washington, approximately 17 miles farther, thence to Bloomfield, approximately 17 miles southeast of Mt. Washington. From this point the evidence is conflicting as to whether they drove to Bardstown or drove directly back toward Louisville. In either event on their return journey at about 9:45 P. M. in attempting to pass another automobile traveling in the same direction the accident occurred in the manner hereinbefore set out. Appellee testified that he was driving between 45 and 50 miles per hour at the time. The 4 occupants of the car which was sideswiped testified that he was driving about 75 or 80 miles per hour. The appellee admitted that he had had 4 or 5 drinks from the time he met Mrs. Sutherland until the time of the accident; that he could feel his drinks but was not drunk. He was a little hesitant before he finally answered that he was sober. To the following question he made the following answer. Q. "Had the drinks which you had taken in anywise affected your ability to operate the automobile?" A. "Well, I had had the drinks, I could feel the drinks but...