Whittaker v. Thornberry

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtStanley, Commissioner
Citation306 Ky. 830
PartiesWhittaker et al. v. Thornberry.
Decision Date12 March 1948
306 Ky. 830
Whittaker et al.
Court of Appeals of Kentucky. Common Pleas Branch, First Division.
March 12, 1948.

1. Evidence. — Where proper foundation has been laid, hospital records are admissible as to all matters proper for inclusion in record of such nature.

2. Evidence. — The basic rule of evidence is that person whose statement is received as testimony should speak from personal observation or knowledge, but necessities of a case and trustworthiness which experience has taught have introduced exceptions to the hearsay rule.

3. Evidence. — Entries made in ordinary and regular course of duty by persons not having knowledge of facts entered are admitted as competent evidence under "shopbook exception" to hearsay rule.

4. Evidence. — Authenticated hospital chart is admissible in evidence where party offering it shows necessity of admitting the record without requiring persons who made it, or caused it to be made, to testify.

5. Evidence. — In order to render authenticated hospital record admissible, it should be shown that persons having knowledge of the facts made the record contemporaneously or within such time thereafter as to be part of the transaction, in accordance with ordinary and regular course of hospitalization, or transmitted facts for inclusion in record by one serving in capacity of an amanuensis, or in line of duty.

6. Evidence. — In personal injury action, where defendants showed that two of the physicians who had treated plaintiff while patient in hospital were no longer members of staff and were not in city, and also presented hospital employee who had custody

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of records of patients there, hospital records pertaining to plaintiff's case were admissible.

7. Appeal and Error; Continuance; Trial. — Where plaintiff, in order to avoid a continuance, consented that affidavit of one of defendants as to what two absent witnesses would testify, if present, should be read as their depositions, refusal of trial court to admonish that affidavit should be considered as depositions of the absent witnesses, after argument between counsel as to its effect, and holding that it was an affidavit constituted prejudicial error. Civil Code of Practice, sec. 315.

8. Automobiles. — A pedestrian and a motorist have equality of right in street and neither may proceed in disregard of right of the other or his own safety, and pedestrian's superior right of passage at intersection is not absolute but relative only. KRS 189.570, subd. (2).

9. Automobiles. — Where by reasonable judgment or reasonable calculation or estimate of distance, speed and time of both pedestrian and motorist, motorist will probably first reach point of meeting, motorist has right of way both under common law and statute, but if pedestrian would probably reach meeting point first under those conditions, he has the right of way. KRS 189.570, subd. (2).

10. Automobiles. — Where automobile is so near to probable point of meeting with pedestrian at intersection that if it should continue its course in a careful and prudent way, circumstances considered, and pedestrian should proceed in like manner, a collision would naturally be expected to follow, statute requires automobile to yield to pedestrian. KRS 189.570, subd. (2).

11. Automobiles. — A pedestrian crossing street at intersection may assume that motorist will use ordinary care to avoid injuring him, but such preference does not give pedestrian exclusive control of entire area of intersection, and it remains his duty to exercise reasonable care to avoid collision and to proceed with reasonable regard for approaching automobile and for his own safety. KRS 189.570, subd. (2).

12. Automobiles. — In action for injuries sustained by pedestrian who was struck by bus while crossing street at intersection, where instructions were given submitting duties of driver of bus but no instructions were given as to pedestrian's duties with respect to the matter, omission of such instruction was error. KRS 189.570, subd. (2).

13. Automobiles. — A motorist need not anticipate that an adult person seen in a place of safety will leave that place and come into path of danger until that person makes some movement that reasonably indicates that he will do so. KRS 189.570, subd. (2).

14. Automobiles. — In action for injuries sustained by pedestrian who was struck by bus while crossing street at intersection, where

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evidence showed that plaintiff had not taken over three or four steps from curb when struck by bus and that bus was travelling at a slow rate, defendants were entitled to instruction covering their claim that plaintiff left place of safety on curbing and came into path of or up against the bus. KRS 189.570, subd. (2).

15. Automobiles. — In action for injuries sustained by pedestrian who was struck by bus while crossing street at intersection, where there was evidence supporting defendants' theory that plaintiff was intoxicated at time of accident, defendants were entitled to an instruction to effect that if jury believed plaintiff was in an intoxicated condition, ordinary care as applied to him, meant that degree of care reasonably exercised by ordinarily careful and prudent persons when sober under similar circumstances. KRS 189.570, subd. (2).

Appeal from Jefferson Circuit Court.

R.W. Keenon, Hugo Taustine and William Swinford for appellants.

Morris & Garlove for appellee.

Before Roscoe Conkling, Judge.



The appeal is from a judgment for $8,000 for personal injuries sustained by Roy Thornberry when, as he claims, he was struck by a bus of the appellants, Ray T. Whittaker, and another, partners doing business as "Blue Motor Coach," on the southeast corner of Liberty and Floyd Streets, in Louisville, on Sunday afternoon, January 6, 1946.

The evidence of the plaintiff, supported by several witnesses, was that the bus was driven up Liberty Street at a rapid speed and, without the driver exercising due care, struck the plaintiff as he was crossing from the south to the north side of the street along the east side of Floyd. The evidence for the defendants, supported by a number of witnesses, was that the bus was driven at a lawful speed, had come to a practical stop on the west side of Floyd Street in order to let a police patrol car or ambulance pass, and was moving very slowly when the plaintiff stepped off the curb into the front corner of the bus; also that he was under the influence of intoxicating liquor. While we regard the weight of the evidence to support the defendants' claims, it seems sufficient to express the opinion that the court properly overruled the defendant's motion for a peremptory instruction. But the judgment must be reversed for what we deem to be errors.

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1. The defendants introduced a member of the staff temporarily in charge of the Marine Hospital, an institution of the United States government, Veteran's Administration, to which the plaintiff, Thornberry, was taken from the Louisville General Hospital shortly after having been taken there from the scene of the accident. They offered to prove the records of the hospital pertaining to the plaintiff's case. The court sustained an objection and the defendants made an avowal by means of the doctors' testimony heard in chambers without the hearing of the jury. It was therein developed that the two doctors who had treated the patient were no longer members of the staff and were not in the city. The defendants also presented an employee of the Louisville General Hospital who had the custody of the records of the patients there. She did not know who made the record of the plaintiff's case on the occasion of his admittance and treatment, for the record was not signed and there were a great many physicians at the hospital. This evidence was also rejected.

As stated in a note, 75 A.L.R. 378, there is a conflict among the courts as to whether such evidence is admissible at all and more confusion as to the reason. The weight of authority seems to be that when a proper foundation has been laid, hospital records are admissible as to all matters proper for inclusion in a record of such nature.

It appears that this court has not hitherto ruled upon the point generally. In National Life & Accident Insurance Company v. Cox, 174 Ky. 683, 192 S.W. 636, in an action on an accident insurance policy, it was held that no error was committed by the trial court in...

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