Wheat's Adm'r v. Gray

• Decision Date: 04 March 1949
• Citation: 218 S.W.2d 400,309 Ky. 593
• Parties: WHEAT'S ADM'R v. GRAY et al.
• Court: Kentucky Court of Appeals

218 S.W.2d 400

309 Ky. 593

WHEAT'S ADM'R v. GRAY et al.

Court of Appeals of Kentucky

March 4, 1949

Appeal from Circuit Court, Boyle County; K. S. Alcorn, Judge.

Action by Albert Wheat, as administrator of the estate of William Wheat, deceased against Earl Gray and another for the death of plaintiff's intestate as the result of being struck by an automobile driven by named defendant. Judgment for defendants, and plaintiff appeals.

Affirmed.

George R. Silliman, of Danville, for appellant.

Chenault Huguely, of Danville, and T. M. Galphin, Jr., of Louisville for appellees.

SIMS Chief Justice.

William Wheat, a two year old child, while crossing the Perryville-Lebanon highway alone, was struck and killed by an automobile owned by Ray F. Gray, and driven by his son, Earl Gray, a young man twenty-two years of age. The child's father qualified as his administrator and brought this action against the Grays for $20,000 damages for the alleged negligent killing of William. The answer was a general denial followed by a plea of contributory negligence upon the part of the parents of the child in placing him in the custody of his nine year old sister, who permitted William to go upon the highway unaccompanied.

A trial resulted in a verdict in favor of the defendants and the administrator on this appeal insists that the trial court erred: 1. in refusing to allow appellant to file a supplemental bill of exceptions; 2. in instructing the jury 3. the form of the verdict shows it was the result of prejudice; 4. the verdict is flagrantly against the evidence.

The accident happened about 4:30 o'clock in the afternoon of July 5, 1947, which was Saturday, just outside of the city limits of Perryville and almost in front of the home of the child's parents. This is a black-topped highway which is 17 feet 8 inches wide at the place of the accident with an 11 foot shoulder on the west and a 5 foot 5 inch shoulder on the east, which shoulders extend for a distance of some 56 feet from the point where the child was struck. There was no traffic moving in either direction, except the Gray car, and a driver of a car traveling in the same direction Gray was going had an unobstructed view of the spot where William was struck from 125 feet to 200 yards, the testimony of the several witnesses being at variance as to this distance.

Mr. Wheat, the child's father, was at work in his store some quarter of a mile from his home, and Mrs Wheat was busy in the back part of her house and had left William in charge of his nine year old sister, May Etta. Several children living in the neighborhood had congregated at the home of Stanley Smith, which is on the east side of the road, opposite the house of C. P. Crain, which latter was on the same side of the road as the Wheat home, but some 250 feet from it.

May Etta testified that she was sitting in the swing on the Smith porch with two children and that her brother was playing in the yard when he started for the road dragging a full-sized leaf rake. She started after him when William was on the edge of the road but before she could catch the child he had gotten onto the road and was struck by the Gray car. This was the second time that afternoon that William eluded May Etta and went unaccompanied upon the highway. The first time he crossed the road alone he went to the Crain place.

William was about two feet tall and there was a considerable slope from the edge of the black-topped road to the Smith yard, and there were shade trees on each side of the road in front of the Smith house. Earl Gray, the driver of the car, testified that he was traveling about 15 miles an hour and he first saw the child on the road running as fast as the little fellow could, dragging the rake. William was then about 15 feet, or a car's length, in front of the automobile. Gray testified his brakes were in perfect condition and he put them on with all his force but could not stop in time to prevent striking William. His left rear wheel ran over the child and Gray brought his car to a stop within approximately 25 feet after striking William. That he did not attempt to swerve the car, nor did he sound his horn but put all his reliance in his brakes, which he applied as quick as the child appeared.

Marian Gray, a grown sister of the driver and seated beside him in the car, corroborated him as to the speed of the car and as to the distance within which it was stopped after the accident. The testimony of appellant's witnesses does not differ greatly from that of Gray and his sister on these points.

The case was tried at the September 1947 term and appellant was given until the fifth day of the next regular term (which convened on the first Monday in January) to file his bill of exceptions. The bill was tendered within the time given and was examined, signed and approved by the judge and made a part of the record on Jan. 23, 1948. Appellant subsequently discovered that certain instructions offered by him were omitted from the bill of exceptions and on the last day of the April 1948 term, which was May 1st, he offered an amended bill containing the omitted instructions. The court refused to file this amended bill, but made it a part of the record for the purpose of this appeal. When the trial judge approved and made the bill of exceptions a part of the record during the January term, the case passed beyond his control at the expiration of that term and had he permitted the amended bill to be filed at the succeeding April term, he would have violated § 334 of the Civil Code of Practice. See Louisville Lozier Co. v. Sallee, 167 Ky. 499, 180 S.W. 841; Smith v. Swope, 284 Ky. 625, 145 S.W.2d 827.

Appellant relies upon such cases as Oliver v. Muncy, 271 Ky 15,...