Thixton v. Palmer

• Decision Date: 30 October 1925
• Citation: 210 Ky. 838
• Parties: Thixton v. Palmer, by, etc.
• Court: United States State Supreme Court — District of Kentucky

210 Ky. 838

Thixton v. Palmer, by, etc.

Court of Appeals of Kentucky. Common Pleas Branch, Fourth Division.

Decided October 30, 1925.

1. Municipal Corporations — Contributory Negligence of Bicycle Rider Not Shown. — In action for injuries to bicycle rider struck by defendant's automobile, evidence held to show no contributory negligence on part of plaintiff.

2. Master and Servant — Son Driving Mother's Automobile Responsible for Negligence of One whom he Permits to Drive. — Where mother had intrusted her automobile with son, negligence of friend, whom son permitted to drive while he rode in back seat, would be negligence of son.

3. Master and Servant — Mother Allowing Son to Use Automobile Responsible for Negligence of One whom Son Permits to Drive. — Where mother had allowed her son use of automobile to take friend and two girls riding she would be responsible for injuries resulting from negligence of friend, whom son had permitted to drive while he rode in back seat.

Appeal from Jefferson Circuit Court

JOHN P. HASWELL for appellant.

L. FRANK WITHERS for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER

Affirming.

The appellant, who was defendant below, seeks to reverse a judgment for $535.00 recovered against her by the appellee as plaintiff below, for injuries alleged to have been sustained on March 21, 1918, when a bicycle which was then being ridden by plaintiff was struck by an automobile belonging to the defendant. Defendant's automobile was a Ford touring car which she had bought for the use of herself and her son. On this evening defendant's son, George T. Thixton, had arranged with a friend of his, Allen Douglas, to go with him to a picture show, and it was their intention to take with them two of their lady friends. Young Thixton obtained his mother's permission to use her car, and left home with Douglas, who was only a friend and not related to him in any way, and drove to the home of a Miss Kaiser, a friend of young Thixton. This young woman was expecting them, and was ready. She and young Thixton got into the rear seat of the automobile. Young Douglas drove the car to the home of a Miss Margery Bane in that part of Louisville known as Parkland. Miss Bane got into the front seat of the automobile with Douglas, and the four of them started up Twenty-eighth street on their way to the show. It was then about eight o'clock in the evening, and rather dark. At that time the plaintiff was coming south on Twenty-eighth street. He had broken the pedal off of his bicycle and was riding next to the right-hand or west curb of the street, and propelling the bicycle by putting his right foot upon the curbing and pushing the bicycle along. As the automobile went north on Twenty-eighth street, it got into the car tracks, and they had some difficulty in getting it out of the tracks. They were endeavoring to do so by what they termed "zigzagging" the machine. As a result of their efforts to get out of the tracks, the car suddenly left the tracks, darted across the street to the west or left-hand side, according to the direction the car was going, and before it could be stopped struck the plaintiff's bicycle, knocked it over on to the sidewalk, thus throwing plaintiff therefrom, and injuring his knees. This injury caused a serious synovial swelling, which the physician who attended plaintiff called a bursitis, and resulted in what the physician describes as a fibrotic condition of the knee joint. When this case was tried on March 12, 1924, there appeared to be little seedlike bodies that could be felt in the young man's knee, just below the knee cap, as a result of which his knee has been partially stiffened.

At the conclusion of the evidence the defendant moved the court to instruct the jury peremptorily to find for defendant, which motion was overruled. Defendant excepted; thereupon plaintiff moved the court to instruct the jury peremptorily to find a verdict for the plaintiff, to which defendant objected. The objection was overruled, and the jury was instructed peremptorily to find a

Defendant had pleaded contributory negligence on verdict for plaintiff, to which defendant excepted. the part of the plaintiff, and moved the court to give an instruction thereon, which the court declined to do, and defendant excepted. These are the grounds upon which we are asked to reverse this judgment.

Addressing ourselves first to the refusal of the court to instruct on contributory negligence, it is sufficient to say that there was no evidence of any negligence upon the part of the plaintiff. Some of defendant's witnesses testified that they did not see any light on the plaintiff's bicycle, but were unable to say that there was none on it. Plaintiff testified that he had a carbide light on his bicycle, and it was burning brightly; thus there was no evidence of any negligence on the part of plaintiff to be submitted to the jury, and the court's refusal to instruct on that feature of the case is approved.

Returning to the action of the court in instructing the jury to find a verdict for the plaintiff, we find these to be the salient facts: Young Thixton, to whom defendant had entrusted the driving of the automobile, was not driving at the time of the accident, and the car was being driven by young Douglas, who was in no wise related to defendant, and who had no instruction or permission from the defendant to operate the car. The question presented is, can the defendant, after she entrusted the operation of her car to her son, be held liable for the negligence of another, to whom the son in turn entrusted the operation of the car? Many of the cases which we find on this question go back to a case in England, and are rested upon an opinion rendered by Lord Abinger, C.B., in the...