Wigginton's Adm'r v. Rickert

• Citation: 217 S.W. 933,186 Ky. 650
• Parties: WIGGINTON'S ADM'R v. RICKERT.
• Decision Date: 27 January 1920
• Court: Court of Appeals of Kentucky

217 S.W. 933

186 Ky. 650

WIGGINTON'S ADM'R v. RICKERT.

Court of Appeals of Kentucky.

January 27, 1920

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Mamie Rickert against Bertram M. Wigginton's administrator and a street car company for personal injuries. A verdict for the street car company was directed, and judgment rendered on a verdict for plaintiff against the administrator, and the administrator appeals. Affirmed.

Strother & Hamilton, of Louisville, for appellant.

Fred Forcht and H. N. Lukins, both of Louisville, for appellee.

CARROLL C.J.

About 10 o'clock at night Bertram Wigginton and three companions, after visiting in an automobile owned and operated by Wigginton, and drinking intoxicating liquor at a number of saloons in different parts of the city of Louisville, decided to take a run from the west end of the city east on Main street. At Sixth and Main the street cars going west on Main street leave that street and turn in to Sixth street going south on that street. On this occasion as a street car was making the turn from Main to Sixth and going at a very slow rate of speed it was run into and hit by the automobile yet operated by Wigginton, and at the time being run in a reckless manner, at a high and dangerous rate of speed. We say this because of the intoxicated condition of the driver and the fact that four persons, who happened to be on Main street at different places between Sixth and Tenth when the machine passed, and who were qualified by experience and observation to express an opinion, said, one of them that it was running about 45 miles an hour, another one about as fast as the salvage corps goes in racing to a fire the other two that it was going 40 miles an hour. It should, however, be said that the two surviving occupants of the automobile testified that while going up Main street, and when the street car was struck, the machine was running at from 12 [217 S.W. 934] to 15 miles an hour; but the jury did not, nor do we, give much attention to the evidence of these witnesses.

When the automobile struck the street car it was thrown back with such force and violence against a telephone pole on the corner of Sixth and Main that the machine was wrecked, and two of the occupants, one of them being Wigginton, were killed.

At the time the collision occurred the appellee, Mamie Rickert, who was 34 years of age, accompanied by her daughter, was a passenger on the street car. She and her daughter occupied together a seat on the opposite side of the car from that struck by the automobile, she being seated next the window and her daughter next to the aisle. When the collision occurred she was thrown by the force of it against the side of the car or window, and her daughter was thrown against her.

After this Mamie Rickert brought suit against the street car company and the administrator of Wigginton to recover damages for injuries alleged to have been sustained as a result of the collision, and on a trial of the case the court directed a verdict in favor of the street car company, and, the jury having found against the administrator, there was a judgment on the verdict in favor of Mrs. Rickert for $4,400, and the administrator appeals.

On this appeal the assignments of error are: (1) That the court erred in overruling the motion of the administrator in arrest of judgment; (2) that the verdict was contrary to law; (3) that the court erred in directing a verdict in favor of the street car company; (4) committed error in admitting incompetent evidence; (5) that the verdict was excessive; and (6) the instructions are also complained of.

Taking up the material grounds of alleged error out of the order in which they appear in the briefs, the complaint that incompetent evidence was admitted is based on the fact that the trial court permitted witnesses to testify as to the number of drinks Wigginton and the occupants of the machine had taken at the various saloons they visited within a few hours before the accident, in parts of the city some distance from Sixth and Main; it being argued that this evidence was too remote from the time and place of the accident to throw any light on the causes that brought it about, and its introduction only served to prejudice the minds of the jury against the driver and occupants of the machine.

The evidence shows that, beginning two or three hours before the accident, these parties visited a number of saloons, drinking at each of them, the last one at which they stopped being about 13 squares from Sixth and Main; that when they left this saloon they did not make any stops between that point and Sixth and Main, although it should be said that in going up Main street they were on their way to another saloon. We think this evidence was competent for the purpose of throwing light on the speed at which the machine was going and the reckless manner in which it was being driven at the time of the collision, because it is a matter of common knowledge that persons under the influence of liquor are wholly unfit to operate automobiles in cities or out of them either in the night or day; they have no thought of their own safety, and appear to be wholly possessed of a desire to run the machine as fast as it can go, without any regard to the rights of other people; and so, when an automobile accident happens that results in a suit for damages, it is permissible to show the intoxicated condition of the driver and the number of drinks of intoxicating liquor he has taken, beginning within such a length of time before the accident as would furnish some evidence of his condition when it occurred.

It was likewise competent to permit the witnesses who saw the machine on its journey up Main street at Tenth and Seventh and near Sixth to relate the speed at which it was going; this evidence tending to show how fast it was being run at Sixth street, as the distance between Tenth and Sixth is only four squares, and only a few moments elapsed between the time when these witnesses saw it and the accident.

With reference to the ruling of the trial court in directing a verdict for the street car company, we have no fault to find. There is no evidence of probative value in the record, or reasonable inference that can be drawn from any evidence that the street car company was guilty of any negligence contributing to the accident. The street car was well lighted, and could plainly be seen...