Tente v. Jaglowicz
| Decision Date | 15 December 1931 |
| Citation | 241 Ky. 720 |
| Parties | Tente v. Jaglowicz. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — Instruction in action by passenger in automobile to recover against driver of car colliding therewith defining duties of both drivers held not prejudicial, in view of verdict.
Although negligence of driver of automobile could not be attributed to pasenger, making it unnecessary to define duties of such driver, verdict expressly found that accident was unavoidable, which was tantamount to finding that driver of automobile in which pasenger was riding was free from fault, excluding any notion that jury attributed to guest any possible negligence of driver in failing to observe any of the reciprocal duties defined by instruction.
4. Appeal and Error. — Incorrect or inapplicable instruction, to warrant new trial, must have been prejudicial to substantial rights of complaining party.
5. Negligence. — Instruction that injuries to passenger in automobile solely by negligence of driver prevented recovery against owner of automobile colliding with car held not erroneous.
Such instruction did not impute any negligence of driver to guest, but merely excluded any liability on part of owner of automobile colliding with car for negligence of driver of other automobile in case his own driver was free from fault.
6. Automobiles. — Ordinary care requires driver of automobile to consider road on which he is driving, as well as consequences likely to result from carelessness.
7. Automobiles. — Operator of automobile is not necessarily negligent because it skids or slides on icy street.
8. Automobiles. — Negligence of automobile driver as respected skidding of car on icy street with resulting collision held for jury.
9. Trial. — Verdict in action for injuries in automobile collision finding for defendant on ground accident was unavoidable held not erroneous as beyond issues.
Appeal from Jefferson Circuit Court.
DODD & DODD for appellant.
HITE H. HUFFAKER and JOHN MOREMAN for appellee.
Affirming.
The automobiles of J.A. Jaglowicz and Mrs. Effie C. James came into collision at the intersection of Longest avenue and Cherokee parkway, in the city of Louisville. The streets each end at the intersection forming an elbow curve. Mrs. Margaret Tente, a guest in the car of Mrs. James, was seriously injured in the collision, and sued Jaglowicz to recover damages therefor. The plaintiff rested the asserted liability upon an allegation of negligence upon the part of the driver of the defendant's car in causing the collision and consequent injuries. The defense was a denial of the negligence alleged, coupled with a plea of contributory negligence upon the part of the plaintiff. The jury found a verdict for the defendant, and the plaintiff has prosecuted an appeal.
A preliminary statement of the facts is essential to an understanding of the contentions of the appellant. Mrs. James was driving her own car, and Mrs. Tente was riding on the front seat beside her. They were proceeding westerly along Longest avenue towards Cherokee parkway, and, as they approached the intersection with Cherokee parkway, Mrs. James saw the Jaglowicz car coming towards her on Cherokee parkway. She pulled her car to the right side and stopped in the curve at a point between a tree and a telephone pole, near the curb, and practically in line with the center of Cherokee parkway. The Jaglowicz car was moving in the middle of the street and the driver was endeavoring to stop it. The brakes locked the wheels, but did not hold the car because of the ice on the street. Mrs. James thought she could get her car out of the way by stopping it near the curb. The other car did not stop. As it reached the intersection, it failed to turn to the right, as the driver desired, but continued to skid or slide straight ahead until the collision occurred. Mrs. James said the Jaglowicz car was going twenty or thirty miles an hour, and at the time of the collision her car was standing still. The weather was bad, and the street was covered with snow and ice. The running board on the James car was turned up, and the two fenders were mashed. Mrs. James was not hurt, but Mrs. Tente was seriously injured by the impact of the cars. The driver of the Jaglowicz car testified that he was coming down the street at a speed of about five miles an hour, when he applied the brakes in order to round the curve at the intersection. The car then began to slide. He turned the front wheels of the car, but the street was so icy as to prevent traction, and the car continued straight ahead until it collided with the James car. Mrs. James was near the end of the street, and the Jaglowicz car was moving down grade. When the driver applied the brakes, the wheels locked, the car began sliding and continued sliding in a direct line until it was stopped by the collision. Mrs. Jaglowicz was riding in the car, and corroborated the driver as to the facts just related. The only injury to the Jaglowicz car was the bending of the front fenders down against the tires.
A witness standing on the sidewalk near the intersection observed the accident. He stated that Mrs. James stopped her car near the curb, and it was standing perfectly still when the collision occurred. The Jaglowicz car was moving at a speed of twenty miles an hour or less. He emphasized that it was moving slowly. The wheels locked and the car slid forward on the ice and packed snow. While the car was sliding slowly the front wheels were cut to the right to make the turn at the intersection, but, instead of turning, the car continued sliding straight to the James car. The witness stated that the car was not skidding to the side, but was sliding forward along the street. The damage to the cars was merely a bending of the fenders on each of them.
The appellant asks a reversal of the judgment on four grounds thus succinctly stated by her counsel:
(1) That the duties of the driver of a moving car and the duties of the driver of a car that is stopped to avoid collision with the moving car are not reciprocal, and to this extent instruction No. 1 of the lower court is erroneous.
(2) That the negligence of Mrs. James, driver of the car in which appellant was a guest, was not an issue in the case either from the pleadings or proof, and the trial court erred when it instructed the jury that the negligence of a third party could prevent a guest from recovering.
(3) That the skidding of a car is in itself an act of negligence, and the burden of proof is upon appellee to rebut the inference of negligence arising from proof of that fact.
(4) That the jury found the collision was an unavoidable accident when no such issue was made by the pleadings or presented by the proof, and, since the verdict was not responsive to the issues submitted to the jury by the instructions, it was a void verdict.
Instruction No. 1 defined the duties of the drivers of both cars. It was not necessary in this case to define the duties of Mrs. James, for if she was negligent in any respect, such negligence could not be attributed to her guest. But the...
To continue reading
Request your trial