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Tinsely's Adm'r v. Slate

October 10, 1952



CULLEN, Commissioner. Shortly before 8 a. m., on April 25, 1950, a Cadillac automobile driven by the appellee Margaret Slate, and owned by the appellee Mark D. Amsdell, collided with a taxicab driven by the appellee Veachel Wheat and owned by the appellee Yellow Cab Company, at the intersection of Park and Eleventh Streets in the City of Bowling Green. At the moment of the collision, Richard Wade Tinsley, a 13-year-old boy, was riding his bicycle through the intersection, parallel with and immediately to the right of the taxicab. The rear end of the taxicab was knocked against the boy on the bicycle, and he was thrown from the bicycle against a fireplug at the curb, resulting in his death.

The administrator of the boy's estate sued Mrs. Slate, Mr. Amsdell, Mr. Wheat and the taxicab company. A directed verdict was granted in favor of Mr. Amsdell, on the ground that there was no proof of an agency relationship between him and Mrs. Slate, and no question has been raised on this appeal as to the correctness of that ruling. The jury returned a verdict in favor of the plaintiff, and against the defendant Mrs. Slate, for $10,000 plus funeral expenses. The verdict denied recovery against the defendants Wheat and the taxicab company. The administrator appeals.

As concerns the appellee Mrs. Slate, the administrator contends that the damages were inadequate. We will consider this question first.

The boy, Richard Wade Tinsley, was survived by his father and mother, and a brother four years of age. The only evidence bearing on the question of damages is that Richard was 13 years old; he was in the seventh grade in school; his grades throughout his school years had averaged A and B; and he was active in sports, church affairs and the Boy Scouts' program.

In Cuniffe's Ex'x v. Johnson, 279 Ky. 663, 132 S.W.2d 47, we pointed out the jury necessarily must be accorded a wide latitude in fixing damages for wrongful death, because of the many unpredictable factors, contingencies and unforeseeable circumstances which render the damages speculative and conjectural. In Willingham v. Stevens, 312 Ky. 124, 226 S.W.2d 770, decided in 1950, we held that an award of only $1,250 for the death of a seven-year-old girl was not so inadequate as to require a new trial. There is no basis upon which we can say that the award of $10,000 in the case now before us is inadequate.

As concerns the appellees Wheat and the taxicab company, it is the appellant's contention that he was erroneously deprived of a verdict and judgment against them; first, by failure of the court to direct a verdict against them; and, second, by errors with respect to the admission of evidence, the instructions, and the manner and form in which the verdict was returned. Consideration of these contentions requires a brief review of the evidence.

Eleventh Street is a main artery, running east and west, 35.8 feet in width. Park Street is a secondary street, running north and south, 29.8 feet in width, and at the intersection with Eleventh Street there are stop signs on Park Street.

Richard Tinsley was riding his bicycle in a westerly direction on Eleventh Street, close to the north curb. At a point 223 feet east of the intersection, he was approximately 75 feet in front of the taxicab, which was approaching from behind him. As they approached the intersection, the taxicab gradually overtook the boy, and when they entered the intersection they were substantially side by side. At a point about two-thirds of the way across the intersection, where the collision occurred, the front of the taxicab apparently was a little ahead of the front of the bicycle.

Mrs. Slate, driving the Cadillac north on Park Street, failed to stop for the stop sign, and ran into the left rear of the taxicab, knocking the taxicab against the boy on the bicycle. She testified that as she approached the intersection, she slowed almost to a stop, and applied the brake to come to a stop, but her foot slipped from the brake and she 'eased' into Eleventh Street at about 10 miles per hour. Another witness testified that the Cadillac came into the intersection at a speed of 30 to 35 miles per hour.

The evidence was conclusive that the taxicab at no time crossed to the left of the center line of Eleventh Street.

An automobile driven by a Mrs. Jones was approaching the intersection from the west, on the south side of Eleventh Street, and at the time of the collision was some 15 or 20 feet west of the intersection. The significance attached to the presence of this automobile will later appear.

The taxicab driver testified that he did not at any time prior to the collision see the boy on the bicycle.

The appellant claims that he was entitled to a directed verdict as against the taxicab driver and owner because the driver was negligent as a matter of law in driving at an excessive rate of speed, in failing to see the boy, and in violating various statutes. The statutes claimed to be violated are: KRS 189.300, requiring the driver of a vehicle to travel on the right side of the highway unless the left side is clear of traffic for at least 150 feet (Mrs. Jones' automobile was on the left side within 150 feet); KRS 189.340(1), requiring the horn to be sounded when passing another vehicle from the rear; KRS 189.340(3), prohibiting a vehicle from being driven to the left of the center of the highway, in passing, unless the left side is free of on-coming traffic for a safe distance (again referring to Mrs. Jones' automobile); KRS 189.340(4)(b), forbidding the driving of a vehicle to the left side of the highway when within 100 feet of or traversing an intersection; and KRS 189.310(1), providing that when two vehicles are passing or about to pass in opposite directions, no vehicle to the rear of those two vehicles shall attempt to pass either of them (Mrs. Jones' automobile and the bicycle were about to pass in opposite directions).

As concerns KRS 189.300, 189.340(3) and 189.340(4)(b), the appellant's contention fails because there was no evidence that the taxicab was at any time driven to the left of the center of the street. As concerns KRS 189.340(1), there was no evidence that the taxicab driver did not sound his horn. As concerns KRS 189.310(1), there possibly may be some basis for the claim that the taxicab violated the statute in passing the bicycle when the bicycle and Mrs. Jones' automobile were about to pass in opposite directions. However, it is exceedingly doubtful whether this statute was intended to apply to an automobile passing a ...

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