
    Ballback’s Adm’r v. Boland-Maloney Lumber Co.
    February 20, 1948.
    Henry L. Brooks, Judge.
    
      Joseph J. Hancock and Anthony R. Heilman for appellant.
    Davis, Boehl, Viser & Marcus for appellee.
   Opinion op the Court by

Judge Rees —

Affirming.

Preston Leon Ballback, a boy nine years seven months of age, was struck and killed by a truck owned and operated by tbe Boland-Maloney Lumber Company. In an action for damages against tbe Lumber Company by tbe administrator of tbe boy’s estate, tbe jury returned a verdict for tbe defendant. A reversal of tbe judgment is sought on two grounds: (1) Errors in tbe instructions; and (2) insufficiency of the evidence to sustain tbe verdict.

Tbe accident happened on East Cray Street in Louisville on June 27, 1946, about 3 o’clock in tbe afternoon. Appellee’s truck, loaded with lumber, turned into East Cray Street and proceeded east on Cray Street, which is 36 feet wide from curb to curb. On each side of tbe street is a sidewalk 12 feet wide. Tbe Ballback boy and three or four other boys of about tbe same age were lighting firecrackers or squibs, and about tbe time tbe truck entered Cray Street one of tbe boys tied a squib to an iron fence picket or post in front of tbe residence at 914 East Cray Street, and after lighting it be, tbe Ballback boy and probably a third boy backed into tbe street away from tbe expected explosion, and tbe Ball-back boy was struck and knocked down by the truck. There is some conflict in tbe evidence as to whether be backed into tbe path of tbe truck or backed into its side. Allen Holmes, driver of tbe truck, testified that after be turned into Cray Street and bad proceeded 20 or 30 feet be saw tbe children on tbe sidewalk and in tbe gutter on tbe south side of the street. None of them was in tbe street, and be did not know what they were doing. He sounded tbe born, pulled tbe truck into the middle of tbe street, and proceeded east at a speed of ten or fifteen miles an hour. The boys remained on tbe sidewalk and in tbe gutter on tbe south side of the street until tbe cab of tbe truck passed them and he could no longer see them. Tbe first notice be bad of tbe accident was when one of tbe boys shouted to him to stop tbe truck, it bad bit a child. He stopped and found tbe Ballback boy under tbe truck, bis body immediately in front of the right rear wheel and bis feet toward tbe south curb. Tbe wheel bad not passed over tbe boy’s body, but bad .pinched and crushed bis chest. There was a wound behind bis left ear, and bis skull was fractured. Tbe right side of the truck was 12 feet from tbe south curb of tbe street when tbe accident happened. The plaintiff introduced as witnesses three boys, who were present when the accident happened, and Charles W. Carter, who was riding in the cab of the truck on the right side of the driver. Carter saw the boys on the sidewalk after the truck entered Gray Street, and when the truck was about even with them he saw one of the boys step from the sidewalk into the gutter. In the words of the witness, “he was just about even with me when he stepped off, and then the view of the truck, you know, put him out of my sight.” Joseph Lumakin, one of the boys playing with the firecrackers, testified that he was sitting on the rear bumper of an automobile parked on the south side of Gray Street, and that he saw the truck approaching from the west. The decedent and another boy, after lighting the firecracker tied to the fence post, backed across the sidewalk into the gutter, and decedent ran into the street with his head turned toward the firecracker. He ran into the side of the truck and fell in front of the right rear wheel. The other two boys testified on direct examination that they and the decedent were in front of the truck, but on cross-examination they said that the decedent backed into the street after the firecracker was lighted and was struck by the body of the truck back of the cab.

The appellant insists that the instructions are erroneous because they failed to define correctly the duties of the driver of an automobile where children are in or near the path of the vehicle. It is argued that the instructions prepared by this court in Metts’ Adm’r v. Louisville Gas & Electric Company, 222 Ky. 551, 1 S. W. 2d 985, 988, and set out in Stanley on Instructions, section 109, should have been followed literally since the facts are very similar, but that the instructions given in the present case are contrary in several respects to the instructions directed to be given in the Metts case and therefore are erroneous. The instructions in the present case differ somewhat in phraseology from the instructions in the Metts case, but they are substantially the same. Instruction 1 (b) is criticized because it fails to place on the truck driver the duty of “avoiding the striking of the deceased infant.” In the first paragraph of the instruction the jury were told that it was the duty of the driver “to so run and operate said truck, as not to cause it to come into collision with other persons or vehicles using the highway at that time and place,” and in tbe concluding part of tbe instruction tbe court told the jury tbat if they believed from tbe evidence tbat tbe driver was negligent in tbat be failed to perform any one or more of the duties required of bim by tbe instructions and by reason of sucb negligence “bis truck was caused to come into collision with tbe plaintiff’s decedent, Preston Leon Ballback, and be thereby lost bis life, then tbe law is for tbe plaintiff.” This was equivalent to tbe term used in tbe instruction in tbe Metts case tbat it was tbe ‘ ‘ duty of tbe driver to exercise ordinary care * * * to operate said car so as to avoid injury to bim. ’ ’

Appellant next criticizes Instruction 1 (c) because it limits tbe duty of tbe truck driver to tbat of keeping 'a lookout ahead for other persons, whereas sucb duty should have required a lookout for children because a higher degree of care is required towards a child than towards an adult. Tbe term complained of is precisely the same as tbe term used in tbe approved instructions in tbe Metts case. In other portions of tbe instructions tbe additional care required where children are concerned is recognized.

Instruction 1 (d) is criticized because it left to tbe jury tbe question of necessity for sounding tbe born, and appellant insists tbat such necessity was a question of law for tbe court. Several cases are cited in which it was held tbat it was tbe defendant’s duty as a matter of law to sound tbe born, but these are cases in which tbe pedestrian was in imminent peril. Tbe evidence here as to tbe decedent’s peril was conflicting. In fact, tbe great weight of tbe evidence is to tbe effect tbat be was not in a place of peril as tbe truck approached, and tbe question of necessity for sounding tbe born was one for tbe jury to determine.

Appellant complains of Instruction No. 3 because, in defining tbe term “ordinary care,” as applied to tbe driver of tbe truck, it said by tbe term ordinary care “is meant tbat degree of care usually exercised by ordinarily careful and prudent drivers of trucks like or similar to tbat shown by tbe evidence to avoid injury to a child tbe size and apparent age of plaintiff’s decedent under circumstances like or similar to those shown by tbe evidence in this case.” It is argued tbat tbe definition of the term “ordinary care” should not have been limited to “that degree of care usually exercised by ordinarily careful and prudent drivers of trucks,” but should have been that degree of care usually exercised by ordinarily careful and prudent persons. In Pryor’s Adm’r v. Otter, 268 Ky. 602, 105 S. W. 2d 564, 569, this court prepared an instruction defining the term ordinary care to be given on the second trial of the case. The instruction read:

“ ‘Ordinary care,’ as used in these instructions, in its application to the defendant means that degree of care which a person of ordinary, average prudence and skill, engaged in driving an automobile, usually exercises under circumstances like or similar to those proven in this case.”

The instruction was not improper.

Instruction No. 3 defines ordinary care as applied to the decedent as “that degree of care usually exercised by ordinarily careful and prudent boys of his age, capacity and experience under circumstances like or similar to those shown by the evidence in this case.” It is argued that the word “intelligence” should have been used in the definition instead of the word “capacity.” The suggested substitution would have improved the definition, but, in view of the connection in which the criticized word was used, the jury could not have been misled. One of the definitions of the word “capacity” in Webster’s International Dictionary is, “The power of receiving and holding ideas, knowledge, etc.; capability of understanding or feeling; also active mental power; mental ability.” Definitions similar to the definition in Instruction No. 3 of the term ordinary care as applied to children have been approved. City of Louisville v. Lee, 157 Ky. 285, 162 S. W. 1141; Stanley on Instructions, section 587. Brevity in statement and clarity of expression should be the court’s aim in drafting instructions, but where they are inaptly drawn, as frequently happens, this court will not reverse the judgment unless there are errors or mistakes which affect the substantial rights of the complaining party. The purpose of an instruction is to furnish guidance to the jury in their deliberations and to aid them in arriving at a correct verdict. If the statements of law contained in tbe instructions are substantially correct, they will not be condemned as prejudicial unless they are calculated to mislead tbe jury. Knight v. Silver Fleet Motor Express, 289 Ky. 661, 159 S. W. 2d 1002. We find nothing in the instructions before us which could have mislead the jury.

Counsel for appellant finally argue that the verdict is flagrantly against the evidence. If the argument is sound, then, under the rule announced in Nugent v. Nugent’s Ex’r, 281 Ky. 263, 135 S. W. 2d 877, there should have been a directed verdict at the trial for the plaintiff, leaving to the jury only the assessment of the damages. We cannot believe counsel mean that the plaintiff was entitled to a directed verdict. They were not of that opinion when the case was tried. At the conclusion of the plaintiff’s evidence and again at the conclusion of all the evidence, the defendant moved for a directed verdict in its favor, but no such motion was made by the plaintiff. The evidence on all crucial points was conflicting, and the case was clearly one for the jury.

Judgment is affirmed.  