Tate v. Shaver
| Decision Date | 14 March 1941 |
| Citation | 287 Ky. 29,152 S.W.2d 259 |
| Parties | TATE v. SHAVER (two cases). |
| Court | Kentucky Court of Appeals |
As Modified on Denial of Rehearing June 20, 1941.
Appeal from Circuit Court, Muhlenberg County; Clarence Bartlett Judge.
Action by J. L. Shaver against C. F. Tate for damages resulting to plaintiff's automobile in a collision with defendant's automobile, wherein defendant filed a counterclaim. From a judgment for plaintiff and dismissing defendant's counterclaim, the defendant appeals. Subsequently, the defendant filed a petition in equity seeking a new trial, which petition was dismissed, and defendant also appeals from such judgment. By agreement the appeals were heard together.
Affirmed.
T. O Jones, of Greenville, for appellant.
Davis Boehl, Viser & Marcus, of Louisville and T. J. Sparks, of Greenville, for appellee.
SIMS Commissioner.
These two appeals grow out of an automobile collision which occurred on January 28, 1939, at the intersection of College and Trowbridge streets in Greenville. The appellee, J. L. Shaver, plaintiff below, filed a common-law action against the appellant, C. F. Tate, to recover $134.85 damages his car suffered in the collision with Tate's car as a result of the latter's alleged negligence. Tate's answer traversed the petition, pleaded negligence on the part of Shaver and on counterclaim sought to recover $1,200 for personal injuries sustained in the accident and $300 damages done his car. A reply completed the issues. The trial of the cause was had on October 18, 1939, resulting in a verdict for Shaver in the full amount sued for, and the judgment on the verdict dismissed Tate's counterclaim from which the appeals.
At the time of the accident there were no "Stop" signs at this intersection, but subsequent to the accident and before the date of the trial, signs were erected warning traffic on Trowbridge to stop at its intersection with College street. The trial was practically completed by 11:30 and court adjourned at that hour for the noon recess in order to prepare the instructions, giving the jurors the usual admonition not to discuss the case nor to make up their minds. During the noon adjournment two of the jurors, King and Smith, visited the scene of the accident. This fact was not known by the court, the parties or their attorneys, and was not discovered until some time in December, 1939, which was after the October term of the Muhlenberg Circuit Court had adjourned. Promptly after discovering this conduct on the part of these two jurors, Tate filed a petition in equity seeking a new trial on the ground that they had not heeded the admonition of the court and had made up their minds from what they saw when visiting the scene of the accident. Shaver answered that this visit of the jurors, King and Smith, had no effect upon them, nor upon the verdict reached.
The court dismissed the petition for a new trial and Tate appeals from that judgment. By agreement the appeal from the judgment in the common-law action dismissing Tate's counterclaim and the appeal from the judgment refusing a new trial in the equity action were heard together, and this opinion disposes of both appeals.
Trowbridge street runs east and west, while College street intersects it from north to south. Tate was driving west on the north side of Trowbridge street and Shaver was driving south on the west side of College street, therefore each was driving on the right-hand side of the street he was traveling. An embankment and some weeds obstructed the view of both drivers as they approached this intersection, and it was testified that neither could see the other for more than 10 to 30 feet as they approached the intersection. As Tate's car reached the west side of the intersection, Shaver's car entered it from the north and the collision resulted. The front of neither car was damaged as a direct result of the impact. Tate's car was smashed near the right front door, while Shaver's car took the lick about the left front wheel; also, the rear of the two cars came together. Both cars were Fords and were approximately the same size and weight. As a result of the collision, Tate's car was deflected south across Trowbridge street, the front of it struck a telephone pole located at the southwest corner of Trowbridge and College streets; also, Shaver's car was thrown from its course and went west on Trowbridge street some few feet before it stopped. The front of Tate's car was severely damaged when it ran against the telephone pole and this together with the damage caused by the impact practically demolished it. He was knocked unconscious and was painfully hurt. Shaver received no personal injuries, and the damages to his car was $134.85. The fact that neither car took the impact with its front and that each was deflected into a course almost at a ninety-degree angle from that in which it was traveling, and the further fact that the rear of the two cars came together, is strongly indicative that just a moment before the collision Tate pulled his car to his left and Shaver pulled his car to his right.
The court's instructions in appropriate language told the jury it was the duty of each driver to have his car under reasonable control; to keep a lookout ahead; and upon approaching the intersection the car which was nearest the point of intersection of the paths of the two cars had the right of way. If the jury believed from the evidence that defendant, Tate, failed to exercise any one or more of such duties and as a direct and proximate result of his negligent failure, if any, the plaintiff, Shaver, while exercising ordinary care for his own safety, had his car damaged by the collision, the law was for the plaintiff; or if the jury believed from the evidence that the plaintiff failed to exercise any one or more of such duties and as a direct and proximate result of his negligent failure, if any, the defendant, Tate, while in the exercise of ordinary care for his own safety was personally injured and his car damaged by the collision, the law was for the defendant on his counterclaim. A fifth instruction told the jury that if they believed from the evidence that both plaintiff and defendant were negligent and that the accident resulted from the negligence of both, the jury would not award damages to either. Proper instructions were given on the measure of damages of each party, as well as instructions correctly defining "negligence" and "ordinary care".
Tate contends that as his car had practically crossed the intersection when the accident occurred and as it was not damaged in front, the physical facts show he was not violating any of the duties imposed upon him in the instructions regardless of what Shaver testified, and the question of his negligence should not have been submitted to the jury; that the court should have peremptorily instructed the jury to find for him and should have submitted to it only the amount of his damages. He cites Pickering v Simpkins, 271 Ky. 288, 111 S.W.2d 650, and Rammage v. Kendall, 168 Ky. 26, 181 S.W. 631, L.R.A.1916C, 1295, to the effect that where there is no contrariety of evidence and all of it shows defendant was negligent and there was no contributory negligence on the part of the plaintiff, he is entitled to a peremptory instruction and only the question of damages should be submitted to the jury. He further cites C. L. & L. Motor Express Co. v. Achenbach, 259 Ky. 228, 82 S.W.2d 335, and Louisville & N. R. Co. v. Chambers, 165 Ky. 703, 178 S.W. 1041, Ann.Cas.1917B, 471, holding that the physical facts may...
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