Wight v. Rose

• Decision Date: 19 June 1925
• Citation: 209 Ky. 803
• Parties: Wight v. Rose.
• Court: United States State Supreme Court — District of Kentucky

209 Ky. 803

Wight v. Rose.

Court of Appeals of Kentucky. Common Pleas Branch, Fourth Division.

Decided June 19, 1925.

1. Trial — Instructions Held Not Contradictory. — In personal injury action, instruction authorizing recovery, if defendant failed to perform duties in operation of automobile, and plaintiff was injured thereby, but unless jury so believed from evidence, then to find for defendant, an instruction defining duties of driver of truck, in which plaintiff was riding, and directing verdict for defendant, if jury believed accident to have been by driver's failure to perform duties, but unless jury so found, then law was for plaintiff, held not contradictory, when considered together, each being intended as a counterpart of the other.

2. Trial — Instructions Must be Considered Together. — Instructions must be considered together.

3. Appeal and Error — Instruction Held More Favorable than Defendant was Entitled to Under the Evidence. — In action for personal injury from automobile collision, instructions charging plaintiff as matter of law with negligence, if any, of driver of truck in which he was riding, held, under the evidence, more favorable to defendant than they should have been.

4. Municipal Corporations — Instruction as to Rate of Speed Held Properly Refused as Incorrect. — As Kentucky Statutes, section 2739g-51 does not fix any speed limit other than to make it unlawful to operate motor vehicle on highway at greater speed than is proper, having regard for traffic, in personal injury action, there was no error in refusing defendant's instruction, that truck in which plaintiff was riding was being operated at improper and unreasonable rate of speed, if it was being driven at speed greater than 20 miles per hour.

5. Trial — Rule, as to Instruction on Rate of Speed, where Defendant Offers Incorrect Instruction Thereon, Stated. — In personal injury action resulting from automobile collision, where there was evidence that, at time of accident, automobile was being operated in residence district in excess of 20 miles per hour, and defendant requested instruction that such speed was improper and unreasonable, under Kentucky Statutes, section 2739g-51, it was error not to charge that such speed was prima facie evidence of unreasonable and improper driving, though requested instruction was incorrect in law

6. Appeal and Error — Error in Failing to Instruct on Speed as Prima Facie Evidence of Negligence Held Not Prejudicial, where Verdict Necessarily Implied Rejection of Evidence as to Speed. — Error in failing to instruct that speed of truck in excess of 20 miles per hour in residence district was prima facie evidence of unreasonable and improper driving held not prejudicial, where verdict was necessarily based on plaintiff's version that defendant suddenly backed his car in front of truck, when latter was but few feet distant.

Appeal from Jefferson Circuit Court

WOODWARD, WARFIELD & DAWSON for appellant.

NATHAN KAHN for appellee.

OPINION OF THE COURT BY JUDGE CLARKE.

Affirming.

This is an action to recover damages for injuries received in an automobile accident, which occurred July 14, 1923, at Market and Forty-second streets, in the city of Louisville. A trial resulted in a judgment and verdict for $600.00 for plaintiff, and defendant appeals.

The chief complaint is that the first and second instructions given are contradictory, and, therefore, considered as a whole, are necessarily erroneous and pre-judicial.

The first instruction is not criticised. It defines defendant's duties in the operation of his automobile, and authorizes a recovery by plaintiff if the defendant failed to perform any such duties and plaintiff was thereby injured. It concludes: "But unless you so believe from the evidence, then the law is for the...