Tri-State Refining Company v. Skaggs

• Decision Date: 23 March 1928
• Citation: 223 Ky. 731
• Parties: Tri-State Refining Company, et al. v. Skaggs.
• Court: United States State Supreme Court — District of Kentucky

223 Ky. 731

Tri-State Refining Company, et al. v. Skaggs.

Court of Appeals of Kentucky.

Decided March 23, 1928.

1. Automobiles. — Pedestrian lawfully using highway has right to assume he will not be run into by some one in rear of him.

2. Automobiles. — Automobiles overtaking pedestrians on highway has duty to exercise due care to avoid injuring them.

3. Automobiles. — Pedestrian seeing motor truck overtaking her on highway was not required to leave highway merely because of such fact.

4. Automobiles. — Pedestrian seeing motor truck overtaking her on highway was not guilty of contributory negligence in standing with her back to truck on right side of highway, holding arm of

her mother, who stod on curb, waiting for truck to pass, especially in view of fact that jury found she was not guilty of contributory negligence.

5. Trial. — In action by pedestrian for injuries by motor truck on highway, fact that defendant's witness on cross-examination stated that he made report of accident to insurance company, in view of fact that jury was admonished to disregard reference to insurance company, did not render refusal to set aside swearing of jury and continue case reversible error.

6. Evidence. — Party suing for personal injuries has right to trial without witness, subpoena for whom was returned, "Not found."

7. Evidence. — In action by pedestrian for injuries by motor truck, plaintiff's failure to call as witness her mother, who accompanied her at time of injury, was not reversible error, especially in view of fact that defendants did not produce evidence of person who was riding on truck with driver when accident occurred.

Appeal from Boyd Circuit Court.

HOLT, DUNCAN & HOLT for appellants.

MARTIN & SMITH and H.F. PRICE for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

The plaintiff, Maud Skaggs, sought to recover of the appellants, whom we shall call the defendants, $10,000 damages for personal injuries. She recovered a judgment for $2,000. The defendants have appealed. About 11 o'clock on the morning of October 25, 1926, Maud Skaggs and her mother were walking along Louisa street, in Catlettsburg, Ky., in the direction of Louisa. The defendant, Dee Bolt, was driving an automobile tank truck along the same street and going in the same direction. At the point where this accident happened, this street is made of concrete with the curb of the same material, but, as there are no pavements for pedestrians, the plaintiff and her mother were walking in the highway. They had been to Catlettsburg and were carrying some bundles containing purchases they had made there. The plaintiff first heard the tank coming, and looked back and saw it when it was within 20 or 25 feet of them. Her mother was walking next to the curb and she had her mother step up on to the curb and she stood holding her mother by the arm. They were on what was both to them and to the driver of the truck the right-hand side of the road. The plaintiff was struck by some projecting part of the truck, possibly the can rack. She was knocked down, her collar bone broken, and she sustained other injuries. Dee Bolt, the driver of the truck, testified that he was keeping a lookout, but did not see either the old lady or the plaintiff and did not know he had struck her until some one called him while he was eating his dinner and told him he had run over a woman. The defendants filed a joint answer, denying the negligence alleged by the plaintiff, and in separate paragraphs pleaded that the plaintiff's injuries were the result of her own negligence and that the plaintiff was guilty of contributory negligence, and those pleas were put in issue by reply. At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendants requested a peremptory instruction directing the jury to find for them, but their motions were...