Ware v. Saufley

• Decision Date: 28 February 1922
• Citation: 237 S.W. 1060,194 Ky. 53
• Parties: WARE v. SAUFLEY.
• Court: Kentucky Court of Appeals

237 S.W. 1060

194 Ky. 53

WARE v. SAUFLEY.

Court of Appeals of Kentucky.

February 28, 1922

Appeal from Circuit Court, Lincoln County.

Action by H. R. Saufley against F. M. Ware. Judgment for plaintiff and defendant appeals. Reversed and remanded.

C. C Bagby, of Danville, Lewis L. Walker, of Lancaster, and J. S Owsley, of Stanford, for appellant.

E. V. Puryear, of Danville, and G. D. Florence, of Stanford, for appellee.

SAMPSON J.

Appellee, Saufley, sued appellant, Ware, in the Lincoln circuit court to recover damages for injuries to the person of Saufley, occasioned, as it is averred, through the negligence of appellant, Ware, in driving his automobile against the rear wheels of a buggy in which appellee, Saufley, was riding, and from which he was thrown to the ground and injured. The jury awarded appellee Saufley $500 damages. From a judgment upon this verdict Ware appeals to this court.

It is Ware's contention that the trial court erred to his prejudice in refusing to give certain instructions offered by him, and in giving the instructions which the court gave to the jury. Saufley was riding in a buggy drawn by a mare, and Ware was driving an automobile, both going in the same direction on the pike leading from Houstonville to Danville. One Burch was riding in the buggy with Saufley when the automobile which Ware was driving approached from the rear. According to the evidence the automobile was going at the rate of 15 or 20 miles per hour, and was on a downgrade. When in about 250 or 300 feet of the buggy Ware sounded the horn on his machine, and Saufley acknowledges that he heard the signal, but says that the buggy at that time was on the right-hand side of the road, and that there was plenty of room on the left of the buggy for the automobile to pass. Ware disputes this, and says that the buggy was in the center of the road, and that it did not give an inch when he sounded his horn, nor at any time thereafter until the buggy was struck by the car; that on sounding the horn he expected and believed that the buggy would move to the right of the road and give him room to pass, and, relying upon the usual custom in this respect, he slowed down his car by putting on the brake and pushing out the clutch, and came up slowly behind the buggy, expecting it to give enough room for him to pass, and in his effort to pass the buggy struck the hind wheel thereof and caused it to rear up. Saufley says that another automobile had just passed, coming from the same direction, and that he had not crossed over the thread or center of the road since the passing of the first machine, in fact he says that the sounding of the horn of appellant Ware's car was received by him almost immediately after the passing of the first car, and that he remained upon the right-hand side of the road, leaving ample room for an automobile to pass on the left of the buggy.

Instruction No. 1, given by the trial court to the jury, is erroneous not in the particular set forth by appellant in his brief, but because it does not require the jury to believe from the evidence, before finding for the...