
    Hollis v. Bourne. Same v. Calvert.
    Nov. 4, 1942.
    
    
      Stanley B. Mayer and Frank J. Dougherty for appellant.
    Davis, Boehl, Viser & Marcus and Nathan Kahn for appellees.
   - Opinion of the Court by

Stanley, Commissioner

Affirming.

After midnight of October 8, 1938, W. E. Bourne was a guest in an automobile belonging to Mrs. Almeeda Hollis and being driven by ber brother, Dewey Lewis. They were going south on the Preston Street Road in Jefferson County. John Calvert was driving bis automobile north. The two cars collided and Bourne suffered such injuries as necessitated the amputation of bis leg. Mrs. Hollis was also severely injured. Bourne sued her and Calvert for damages and she sued Calvert, alleging the accident was caused by bis sole negligence. The cases were consolidated and a verdict for $7,500 was returned in favor of Bourne against Mrs. Hollis alone, and in favor of Calvert in ber action against him, the jury thereby finding that the driver of the Hollis car alone was negligent. Prom the judgment rendered on the verdict, Mrs. Hollis prosecutes appeals against both Bourne and Calvert, seeking a reversal upon the grounds that the verdicts are not sustained by the evidence; that the instructions were erroneous, and the argument of Calvert’s attorney was prejudicially improper.

The court in effect peremptorily instructed the jury to find for Bourne against either or both Almeeda Hollis and John Calvert, which was proper, for it is certain that one or both were legally responsible for bis injuries unless lie was contributorily negligent and could not recover of Ms bost or be was engaged in a joint adventure or common purpose with ber and tbe driver of ber car, and be alone was negligent and Calvert was free from negligence. It is not contended tbe evidence supported either of these affirmative defenses. Tbe real contest was between Mrs. Hollis and Calvert, each of whom tried to fasten liability upon tbe other. Tbe sufficiency of tbe evidence to prove that Mrs. Hollis’s driver was negligent is tbe question before us. If it was, then she was liable to Bourne and could not recover of Calvert even though be was also negligent.

Tbe road is straight and tbe surface 20 feet wide where tbe accident occurred. Bourne’s testimony is that be was riding on the front seat with tbe driver of tbe car, Lewis, who was going 40 to 55 miles an hour. Tbe lights of tbe other automobile shone in tbe windows of bis car and then came a crash which turned it sideways. Tbe automobile ran across to tbe opposite side of tbe road, down an embankment, where it crashed and turned upside down, pinning him beneath. There is little in bis testimony to prove negligence on tbe part of tbe driver. But tbe testimony of Calvert, who was called as a witness in bis behalf, and tbe physical facts, we think, clearly prove tbe driver of Mrs. Hollis’s car to have been negligent. His evidence is in substance that tbe Hollis car approached him very fast, near tbe middle of tbe road, with strong headlights which blinded him. His signal to dim those lights was ignored. He threw bis machine out of gear, put on tbe brakes, and practically stopped on bis right-band side of tbe road but only six or eight inches from tbe center, just as the Hollis car bit him. He bad tried to turn farther to bis right to avoid a head-on collision when be saw tbe other car was going to bit him. Lewis apparently suddenly swerved to tbe right, as is testified by Calvert and indicated by tbe physical facts. But Calvert’s left front wheel caught tbe left rear tire or tbe end of tbe bumper and pulled tbe front of tbe car about 18 inches across tbe middle line of tbe road. Tbe entire rear of tbe car was three or four feet from the center on its proper side. Police officers so describe tbe location. Tbe markings on the road indicated tbe brakes of tbe Hollis car bad been suddenly applied, practically at tbe point of contact, and that it was then going very fast. Tbe tipping of tbe other car evidently caused Lewis to lose control, for tbe automobile skidded and ran across the road over a ditch eight feet wide and struck a tree 180 feet distant from the point of contact. It was then thrown back upside down, injuring the plaintiff and the other occupants.

The defendant’s evidence tended to prove that the Calvert car ran into the left side of her car when it was on its right side of the road. The extension of part of the Calvert car 18 inches beyond the center is a fact heavily rested upon. Overcoming this, however, is the potent fact that Calvert’s headlights, front bumper, or any of the front part ■ of the car bore evidence of having been struck, while all the damage to the Hollis car was to its right-hand side, except a four-inch cut in the left rear tire, which it could be concluded was caused by the tipping of the Calvert car when it was swerved away from it. While we have not stated in detail the evidence sustaining the contention of the defendant, Mrs. Hol'lis, that Calvert alone was negligent, a recitation of that presented to establish the negligence of her driver is surely sufficient to sustain the finding that he was guilty of negligence, whatever weight might be given the evidence for the defendant. Ward v. Martin, 285 Ky. 337, 147 S. W. (2d) 1027; Rogers v. Price, 290 Ky. 153, 160 S. W. (2d) 371, 372. The responsibility of Mrs. Hollis for her driver’s act is not brought in question.

The instructions first defined the duties of the driver of Mrs. Hollis’s car and predicated her liability upon his failure to perform any one or more of them, and then in the same language submitted the duties and the liability of Calvert. Among those duties was this:

“To travel on his right side of the road whenever possible so to do, and not to pass to the left side thereof, unless said left side of the highway was clear of all other traffic and obstructions and presented a clear vision for a distance of at least a hundred and fifty feet ahead. ” •

The appellant contends that this instruction in relation to Calvert’s duty was erroneous and that the proper instruction was that offered by her, namely:

“It was the duty of the defendant, John Calvert, at the time and place of the accident to operate his automobile in a careful and prudent manner, giving to the automobile in which the plaintiff was riding one half of the road. ’ ’

The argument is that as these cars were proceeding’ in opposite directions, the law is that defined by Section 2739g-39, Kentucky Statutes, viz.:

“Vehicles proceeding from opposite directions shall pass each other to the right, each giving to the other one-half of the road as nearly as possible.”-

This, it is said, is the definite or specific law covering a situation like that presented in this case, where cars are proceeding in opposite directions on a straight road, with an unobstructed view, and should be followed in the instructions rather than Section 2739g-35, Kentucky Statutes, which is general in its application to the operation of automobiles. The pertinent part of that section is:

“The operator # * # shall travel upon the right side of such highway whenever possible, and unless-the left side of such highway is clear of all other traffic or obstructions and presents a clear vision for a distance of at least one hundred and fifty feet, ahead. ’ ’

The given instruction is consistent with both sections of the statute and follows a form often approved. Stanley on Instructions, Sec. 113; Buck v. Kleinschmidt, 279 Ky. 569, 131 S. W. (2d) 714, 715. It was more favorable to Mrs. Hollis in her action against Calvert, for it charged him with the duty of getting upon and staying upon the left side of the highway for a distance of at least. 150 feet before the cars met instead of being there at the moment of passing. We are of the opinion the instruction was proper.

The appellant submits that a statement in argument of Calvert’s attorney was prejudicially harmful and that the admonition of the court was not sufficient to arrest the harm. The statement is: “Put yourself in his place; what would-you have done?” The count sustained an objection and overruled a motion to discharge the jury, having admonished the jury not to consider it and to dismiss the statement from their minds. It is doubtful that the statement was improper. In any event, under familiar law, the admonition of the court was sufficient to clear it away.

The judgment is affirmed.  