author: MOREMEN, Judge.

text:
    Edgar S. OSBORNE, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.

      Francis M. Burke, Pikeville, for appellant.
    John B. Breckinridge, Atty. Gen., Troy Savage, Asst. Atty. Gen., for appellees.
   MOREMEN, Judge.

The appellant, Edgar S. Osborne, was an employee of the Department of Highways of the Commonwealth of Kentucky. The Department had elected to operate under the Workmen’s Compensation Act by virtue of KRS 342.010, which reads in part as follows:

“ ‘Employer’ as used in this chapter includes municipal corporations and any subdivision or corporation thereof. Any election with reference to this chapter shall be exercised by the lawmaking or other governing body thereof. ‘Employer’ as used in this chapter also includes all departments, boards, commissions, and all superintendents or receivers of penal or eleemosynary institutions managed or directed by the Department of Welfare or any other department or agency of the Commonwealth of Kentucky. Any election with reference to this chapter shall be exercised by the Commissioner of Finance.”

Osborne was injured severely while in the course of his employment when struck by an automobile driven by a state trooper who was an employee of the Department of Public Safety of the Commonwealth of Kentucky. Osborne applied for and was paid the sum of $4,086.00 by the compensation insurer for the Department of Highways. Thereafter appellant filed a damage suit against the state trooper personally in the Pike Circuit Court. The record does not disclose the disposition of this suit. Thereafter appellant filed a claim for this same injury with the Board of Claims against the Department of Public Safety of the Commonwealth of Kentucky and sought damages in the sum of $10,000.-00. The Department by answer pled that. Osborne was an employee of the Department of Plighways of the Commonwealth-of Kentucky and had been paid the compensation benefits to which he was entitled, and by the acceptance of that compensation he was barred from filing claim under Chapter 44 of the Kentucky Revised-Statutes on the theory that one cannot sue an-employer for common law liability after-having accepted the benefits under the-Workmen’s Compensation Act. The Board: of Claims dismissed Osborne’s complaint. This action was appealed to the Pike Circuit-Court where again judgment was entered, dismissing the claim. It is from this judgment that this appeal has been taken.

Appellant argues that under KRS 342.010, above quoted, the Commonwealth of Kentucky was not the common employer of both appellant, who worked for the Department of Plighways, and the state trooper, who. worked for the Department of Public Safe— ,ty, because the Act had by its terms designated each department as being a separate employer and, therefore, appellant was entitled to recover from the Department of Public Safety under KRS 342.055, which reads:

“Whenever an injury for which compensation is payable under this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages, the injured employe may claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both. If the injured employe elects to proceed at law by civil action against such other person to recover damages, he shall give due and timely notice to the employer of the filing of such action. If compensation is awarded under this chapter, either the employer or his insurance carrier, having paid the compensation or having become liable therefor, may recover in his or its own name or that of the injured employe from the other person in whom legal liability for damages exists, not to exceed the indemnity paid and payable to the injured employe.”

In other words, appellant argues that unr der KRS 342.010 the departments of the Commonwealth and not the Commonwealth itself are the “employers” and, under KRS 342.055, when the employee of one department of the Commonwealth is injured by an employee of another department, we have “circumstances creating in some other person than the employer a legal liability to pay damages.”

By authority of KRS 12.020 the functions of the state are divided among the constitutional administrative departments, statutory administrative departments and independent agencies. The Department of Highways and the Department of Public Safety are classified as being statutory administrative departments. No attempt is made in Chapter 12 of Kentucky Revised Statutes to separate these departments from the Commonwealth. Its intention (according to KRS 12.025) is “to promote greater economy, efficiency and improved administration in the statutory administrative departments of State Government.” Except as otherwise expressly provided by law, the heads of statutory administrative departments are appointed by the Governor. KRS 12.040. It is plain in Chapter 12 that only the administrative duties are delegated — there is no complete separation of the ministerial agencies, all are parts of the whole Commonwealth.

When we return to consideration of KRS 342.010, first above quoted, which is a section of the Workmen’s Compensation Act, we find that the General Assembly was granting to governmental entities the same right to accept the provisions of the Act as have private individuals. By subsection (1) of KRS 342.003, “Employer” was defined to “mean and include individuals, partnerships, voluntary associations, and private corporations.” KRS 342.010 extended the definition to include certain public bodies and departments of the state. In the case of municipal corporations, the right to elect to operate under the Act was given to “the law-making or other governing body thereof,” and in the case of state departments the right was delegated to department heads. This extension of the Act so that it could include governmental bodies was accomplished by means of extending meaning of the word, “Employer.” We will not sophisticate this simple provision by reading into it an intention of the General Assembly to nullify all the other statutes dealing with state organization and responsibility, and to divorce departments from the source of their existence.

Appellant, himself, negated his theory as to who was his real, employer and the employer of the state trooper. Chapter 44 of the Kentucky Revised Statutes, which sets up the Board of Claims with whom he filed this claim contains this restriction in § 44.120:

“An award shall be made only after consideration of the facts surrounding the matter in controversy, and no award shall be made unless the board is of the opinion that the damage claimed was caused by such negligence on the part of the Commonwealth or its agents as would entitle claimant to a judgment in an action at law if the state were amenable to such action.”

KRS 44.070 provides that compensation may be allowed only for damages sustained “as a proximate result of negligence on the part of the Commonwealth, any of its departments or agencies, or any of its agents or employees while acting within the scope of their employment by the Commonwealth or any of its departments or agencies.”

By these two sections the common law doctrine of respondeat superior is accepted in cases of claims upon the treasury of the Commonwealth. This doctrine merely affirms the principle that when one acts through the agency of another, in legal contemplation, he is, himself, acting and therefore is responsible. But he is never responsible when the actor is not his agent, servant or employee, who is acting in his behalf. So, if appellant and the state trooper were not employees of the Commonwealth and were employees of independent agencies, the theory of respondeat superior has no application. We .conclude that both persons were employees of the Commonwealth.

As was stated in Miller v. Scott, Ky., 339 S.W.2d 941, “the employee, under KRS 342.015(1) upon acceptance of the act, agrees that the ‘arbitration board’ shall have jurisdiction of all accidents arising out of and within the course of his employment including accidents caused by the negligence of fellow employees.”

The Board of Claims properly refused to entertain appellant’s claim and the circuit court was correct in affirming such action.

Judgment affirmed.


source: Caselaw Access Project

author: STEWART, Chief Justice.

license: Public Domain

text:
    William L. LA VIGNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.

      Eugene D. Smith, Cincinnati, Ohio, for appellant.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   STEWART, Chief Justice.

William L. LaVigne was convicted of the crime of armed robbery, KRS 433.150, and sentenced to life imprisonment. We shall refer to him hereinafter as “defendant.” He appeals.

As grounds for reversal he argues (1) that he should have been granted a new trial because of newly discovered evidence ; and (2) that the evidence does not support the conviction because it consists of the uncorroborated testimony of only one witness who identified him as the alleged malefactor.

The Commonwealth’s chief witness was Robert Wind who testified he lived and worked on October 3, 1960, at Gateway Motel, 225 Scott Street, Covington. He was at the time night manager and, during the early morning hours, two men were admitted to the motel office. One of these immediately pulled a gun and commanded him to sit down. Both men demanded and were given all the money in the motel’s cash drawer, which amounted to about $160. The robbers thereafter took Wind into an empty motel room, tied him up with an electric razor cord, bound up his face with a towel, and then departed.

Wind testified defendant was one of the two men and the one who brandished the gun. He said they wore no masks or disguises, that he stared at defendant for approximately five minutes, and that he then moved and got to his left side where he could not “look at him.” Later, defendant was apprehended in Newport and placed in jail, and when Wind went there he viewed eight or nine of the inmates and picked out defendant and another man named Gresham, saying, “These were the men.” On cross-examination, Wind was asked if he had seen a scar on the chin of defendant, and he replied in the negative.

Defendant did not take the stand but he presented witnesses who testified as to his whereabouts at the time of the alleged robbery. His wife stated that he was at home in bed with her when the holdup was said to have taken place. Another witness of his, Sergeant Marvin Harding of the United States army, would not say positively whether he was at home on the occasion in question.

After his conviction, appellant filed a motion for a new .trial on the single ground of newly discovered evidence. In support of this motion he tendered six affidavits, among which was his own, and these writings purported to show that he had worn a goatee during the period surrounding October 3, 1960, the date the crime was fixed as having been committed. The reason he gave for this adornment was that an automobile accident had left an ugly scar on his chin and the goatee was grown to cover it. This he said had been shaved off prior to the trial of this case, and that before and during the trial he had forgotten to bring these facts pertaining to his facial condition to the attention of his attorney.

It is contended the existence of the goatee on defendant’s person when the offense was supposedly perpetrated, if such a matter had been brought to Wind’s attention, might have had a deflating effect on his testimony. The question therefore arises: Is knowledge which was known but not recalled by a defendant at the time of the original trial newly discovered evidence when it is brought to his memory by other persons after the trial and judgment?

In Benge’s Administrator v. Marcum, 194 Ky. 121, 338 S.W. 174, this Court sets forth these grounds that must exist to grant another trial on newly discovered evidence: (1)That the evidence is of such a decisive character as to render a different result reasonably certain; (2) that it has been ascertained since the trial; (3) that it could not have been discovered before the trial by the exercise of reasonable diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching.

This Court has many times held that the belated recollection of a party or a witness will not justify a new trial on the ground of newly discovered evidence. In fact, it must be taken as firmly established in this jurisdiction that facts or evidence not introduced or otherwise made use of at a trial because they were forgotten until after the trial do not constitute newly discovered evidence because of which a new trial may be granted. See Staton v. Smith, 283 Ky. 371, 141 S.W.2d 288; Isgrig v. Jacoby, 199 Ky. 744, 251 S.W. 945; Howton v. Roberts, 49 S.W. 340, 20 Ky.Law Rep. 1331; Meek v. Patton, 12 Ky.Law Rep. 796; and Porter v. First National Bank, 11 Ky.Op. 5, 2 Ky.Law Rep. 213.

Various reasons have been assigned by the courts which have refused to award a. new trial on the ground of newly discovered evidence consisting of facts and evidence forgotten at the time of the original trial and not remembered until thereafter. The reason advanced most frequently is that the moving party, if he had acted with the required diligence at the time of the original trial, would have been able to bring the evidence to light. This is the rationale set forth in Howton v. Roberts, cited above, for barring the granting of a new trial.

We conclude this ground is without merit and, as a consequence, the trial judge correctly held defendant to be not entitled to a new trial.

The point is next raised as to whether the evidence is sufficient to convict where it consists solely of the uncorroborated testimony of one witness as to the identity of a defendant. The Commonwealth maintains this contention cannot- be considered because it was not averred as an error in the motion and grounds for a new trial. This position is not tenable in view of the fact that appellant’s plea of not guilty upon arraignment necessarily placed in issue the sufficiency of the evidence to support his conviction. The burden was upon the Commonwealth to sustain this issue and, if it failed in this respect, the judgment must be reversed.

It is the general rule that neither the trial judge, nor this Court in its review of the case on appeal, may pass upon the credibility of the witnesses or determine the weight to be given their testimony. That is to say, the trial judge may not take from the jury a controverted question of material fact, and this Court may not reverse the judgment merely because the proof is inconsistent, even though either court, if it had sat as a jury in that particular case, would have acquitted the defendant. See Schwachter v. U. S., 6 Cir., 237 F.2d 640. See also Turner v. Commonwealth, Ky., 328 S.W.2d 536, and Roark v. Commonwealth, Ky., 321 S.W.2d 783.

We conclude Wind’s testimony, when viewed in its entirety, was not so improbable as to be unworthy of belief. It was the prerogative of the jury to accept his evidence as against that of appellant. Nor can we hold it is insufficient to support the conviction.

Wherefore, the judgment is affirmed.


author: BIRD, Chief Justice.

text:
    Thomas Vincent NETT, Who Sues by His Father and Next Friend, Carl R. Nett, Appellant, v. John ZELLARS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Rehearing Denied Feb. 23, 1962.
    Fred J. Karem, Karem '& Karem, Louisville, for appellant.
    Kent McElwain, McElwain, Dinning, Clarke & Winstead, Louisville, for appellee.
   BIRD, Chief Justice.

John Zellars was driving an automobile that struck Thomas Vincent Nett, a pedestrian, who was at the time a few months past seven years of age.

Young Nett was severely injured and he brought this action by his next friend to recover damages for his personal injuries and certain special damages resulting from those injuries. He charged Zellars with gross negligence in the operation of the automobile. He sought to recover both compensatory and special damages.

Zellars denied the charge of negligence and pleaded contributory negligence on the part of Thomas Vincent Nett.

The case was tried by a jury and a verdict was returned for the defendant. Judgment was entered in conformity with the verdict and Thomas Vincent Nett appeals.

The evidence shows conclusively that the accident happened in Louisville before 7:30 in the morning on Poplar Level Road in a school zone, a short distance north of the marked crosswalk at Russell Avenue.

Holy Family Church and School is on Poplar Level Road north of Russell Avenue. The Nett home was across Poplar Level Road at Russell Avenue. Zellars was trailing other cars, one of which was driven by Gerhart Fredericks in a southerly direction.

Appellant’s brief contains this statement of facts:

“On October 2, 1958, Thomas Vincent Nett who was then 7 years and two and one half months old, left his home at 7:00 A.M. to attend morning services at Holy Family Church. These services were usually over about 7:25 A.M. Tommy left church after services and proceeded to walk along the church drive to the sidewalk. When he reached the sidewalk, he walked along the sidewalk beside an automobile being driven by Gerhart Fredericks who was in the act of bringing his car to a parking position along the curb. As-Fredericks was bringing his car to a. stop, Tommy Nett walked alongside his-car until the car stopped. * * *
“As the Fredericks automobile came to a stop in the parking position along the curb, Tommy Nett went in front of the automobile to cross the street for the purpose of getting to his home which was directly across from where the Fredericks vehicle had stopped.”

Our examination of the record discloses an abundance of competent evidence-to support the giving of a contributory negligence instruction if the child at the-time was legally capable of contributory negligence. No complaint is made as to-form or substance of the instructions. Was-the child, as a matter of law, capable of contributory negligence? Appellant insists-that he was not, and that the court erred in not submitting this issue to the jury. The evidence discloses that he was aware of the danger of being struck, and that he understood his duty to look in both directions and to use the crosswalk, neither of which he did.

In Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, 452, we said:

“In some cases where the plaintiff is between seven and fourteen years of age it may be necessary to submit to the jury the question whether or not the plaintiff is capable of being guilty of contributory negligence, but in the case at bar plaintiff’s testimony establishes as a matter of law that he had sufficient intelligence and discretion to understand that there was danger of being struck by automobiles while crossing the street. It was not necessary, therefore, to submit this issue, and the trial court was justified in assuming as a matter of law that the plaintiff was capable in law of being guilty of contributory negligence. The trial court correctly defined ordinary care as applicable to plaintiff.”

Under this authority the trial court properly submitted the question of contributory negligence to the jury without giving an instruction on his capability of negligence.

Appellant complains further because the court did not tell the jury that it was Zellars’ duty to drive on the right side of the street. We are unable to see prejudice in the omission when the record discloses unquestionably that Zellars’ chance of avoiding the accident would have been greater had he been on the left side. The record discloses that the Zellars car was actually passing the Fredericks car when the child came from in front of the Fredericks car and ran into the path of Zellars’ car. We must keep in mind too that the child was small and easily concealed by the Fredericks car. No one disputes that fact. Had Zellars been driving in the wrong lane he would doubtlessly have had a little more time and a better chance to avoid striking the child. There was no prejudice in omitting the duty to drive on the right side.

Appellant next complains that the trial court erred in failing to instruct the jury that the speed limit was 20 miles per hour as provided by an ordinance relating to school zones. Much argument has been made concerning the application of the ordinance to this particular school zone because of inadequate notice and markings within the area. However, our study of the record reveals no evidence that Zellars was exceeding the 20 mile limit when the child ran into the path of his car. And further, the undisputed evidence precludes the possibility of speed being a proximate cause of this collision with young Nett. It is quite obvious that speed of less than 20 miles per hour could not have prevented this accident. The court did not err in refusing to consider the ordinance and its speed limits. Even though the violation of an ordinance may be negligence per se, it must be a proximate cause before it is actionable. Jewell v. Dell, Ky., 284 S.W.2d 92; Pryor’s Adm’r v. Otter, 268 Ky. 602, 105 S.W.2d 564; Jordon v. Clough, Ky., 313 S.W.2d 581.

Appellant further complains that the trial court erred in requiring ordinary care by its instruction rather than a high degree of care. We have held that ordinary care is all that is required. Hettich’s Adm’r v. Mellwood Dairy, Ky., 278 S.W.2d 717.

The duty of lookout along with other of Zellars’ duties was properly submitted to the jury. The jury’s verdict is amply supported by the evidence on those issues and no complaint is made as to them.

We find no reversible error. The judgment is therefore affirmed.


author: CULLEN, Commissioner.

text:
    Henry Rogers ANDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1961.
    As Modified on Denial of Rehearing Feb. 23, 1962.
    Certiorari Denied March 26, 1962.
    See 82 S.Ct. 847.

      John Y. Brown, Brown, Sledd & McCann, Lexington, Frank Haddad, Jr., Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., Troy Savage, Asst. Atty. Gen., for appellee.
   CULLEN, Commissioner.

The appeal is from a judgment sentencing Henry R. Anderson to death pursuant to a jury verdict finding him guilty of murder. The case has a number of unusual aspects and has presented troublesome problems.

The judgment appealed from was entered at a third trial, following two previous trials which had resulted in hung juries. At the first trial Anderson was represented by counsel; the defense was insanity; the jury was unanimous in belief of guilt but hung on the question of whether the punishment should be death or life imprisonment. At the second trial Anderson refused to have counsel and conducted his own defense, which was that the charge and the evidence against him were the result of a gigantic conspiracy engineered by his former employer, the General Electric Company, in which the newspapers, the prosecuting attorneys, and the courts had joined; the jury hung on the question of guilt. At the third trial Anderson again refused counsel and conducted his defense on the same theory of a conspiracy; over his objections the court gave an insanity instruction; the jury found him guilty and fixed death as the punishment.

The circuit court granted an appeal pursuant to Anderson’s motion. However, it was only through the individual efforts of the court reporter and the volunteered assistance of counsel who had represented Anderson on the first trial, with which efforts and assistance Anderson would not cooperate, and the dispensation of this Court in granting an extension of time, that the record was prepared and filed in this Court. Thereafter Anderson failed to file a brief or otherwise pursue the appeal, rejected offers of assistance from his former counsel, and made assertions accusing members of this Court of being involved in the conspiracy against him. This Court was reluctant to dismiss his appeal and thus foreclose his rights, feeling that under the special circumstances of the case the question of whether he had received a fair trial should be reviewed regardless of his default. Accordingly, this Court appointed to represent Anderson on this appeal, over his objection, John Y. Brown and his associates in the law firm of Brown, Sledd & Mc-Cann of the Fayette County Bar, and Frank E. Haddad, Jr., of the Jefferson County Bar. These gentlemen, at great personal sacrifice and with the interests of justice as their sole objective, have made a presentation of the appeal that could not be excelled, offering in briefs and oral argument their sincere and earnest contentions that errors occurred requiring a reversal of the judgment. Anderson could not have received better representation from any source, and this Court wishes to commend these attorneys for the splendid service they have performed in carrying out the public obligation imposed upon them.

Before undertaking a discussion of the issues presented on this appeal we consider it essential to state briefly the nature of the case against Anderson, because we believe that the question of whether he received a fair trial must be viewed in the light of what proof of guilt was presented and what defenses were available.

Three apparently disinterested eyewitnesses testified that Anderson stepped out of his parked automobile near the church of which Dr. E. A. Terry, Jr., was a member, as Dr. Terry was about to enter the church on a Sunday morning, and shot him three times at close range. This testimony together with other evidence established a clear case of premeditated murder. Obviously, only two possible defenses were available to Anderson. One was insanity. The other was to attack the credibility of the Commonwealth’s witnesses, either by independent evidence of facts contrary to those testified to by them or by showing that they had cause to testify falsely.

At the first trial the sole defense was insanity. This defense was not successful in .that all of the jurors believed Anderson to be guilty of murder, their differences of opinion being only as to the extent .of punishment. The medical evidence at the first trial was strongly convincing that Anderson at the time of the shooting was sane under the established tests of legally responsible sanity. The defense of insanity therefore held little promise of being a successful one at the time the third trial commenced and, as hereinbefore stated, Anderson did not rely on that defense at either the second or third trial.

As to his other possible defense, there apparently was no available evidence of facts contrary to those testified to by the eyewitnesses for the Commonwealth, because at the first trial, when Anderson was represented by able counsel, no effort was made to produce such evidence. Therefore, the only remaining method of attacking the probity of the Commonwealth’s evidence was by showing that the witnesses had cause to testify falsely. This is the method that Anderson employed at the second trial, with partial success, and again employed at the third trial.

We shall view the claims of error against the background of the circumstances above stated.

The primary claim is that the trial court should have forced counsel upon Anderson over his positive and vehement rejection of the court’s efforts to induce him to accept counsel. The contention is that the rejection of counsel was not made “intelligently, competently, understanding^ and voluntarily,” within the rule stated in Gholson v. Commonwealth, 308 Ky. 82, 212 S.W.2d 537, because Anderson was not mentally capable of making an intelligent, competent and understanding decision of the question of his need for counsel. Accordingly, it is argued, he was in effect denied his constitutional right of counsel.

Before the first trial the judge had caused Anderson to be examined by three psychiatrists to determine whether his mental condition would permit a trial. They filed a joint report stating that he was suffering from “Schizophrenic disorder, Paranoid type,” but that he was of superior intelligence and was completely oriented as to time, place and person. In separate reports two of the doctors stated without qualification that Anderson’s mental condition would permit a trial. One said: “he is in condition mentally to secure a fair trial by being able to make a rational defense, employ, advise with and discharge counsel, and conduct his defense generally in an intelligent way. * * * His mental thought processes are well-preserved, and his capabilities of organization and reasoning are intact. * * * ” The other said: “It is my opinion that Anderson is mentally capable of employing, advising with counsel and assisting in the conduct of his defense. * * * his intelligence is high, his ability to organize his thoughts is intact and, except for the basic delusions, his reasoning power is intact.” The third doctor stated: “Anderson is capable of securing a fair trial except, in my opinion, for one fact. His entire thinking stems from a delusion which he believes to be true. Therefore, his rational defense stems from a false position and is only rational as it supports the delusion.”

The delusion to which the doctors referred was the delusion of persecution by the General Electric Company, the newspapers, various public officials, etc., leading Anderson to take the position that the prosecution was a conspiracy to “frame” him. Of course this theory of persecution and conspiracy was the one on which he conducted his defense. It must he remembered that hardly any other theory of defense was available to him.

Aside from the majority opinion of the examining doctors that he was capable of standing trial and conducting a rational defense, there is the fact that Anderson was a graduate of the Notre Dame Law School and had been admitted to practice law in Indiana, and the further fact that his pro se defense at the second trial was successful to the extent that he avoided a conviction. These facts were entitled to consideration as bearing on the question of his ability to defend himself without counsel at the third trial.

It is argued that Anderson’s tactics during the course of the trial, in being unruly and obstreperous, insulting the witnesses, and otherwise conducting himself so as to antagonize the judge and the jury, are proof that he was not capable of defending himself fairly. However, even had counsel been forced upon him, there is no assurance that he would not have succeeded in engaging in antagonistic conduct in the courtroom. Furthermore, who is to say that the use of such tactics as he employed was not the best strategy under the circumstances ?

In the final analysis we come to the question of what it would have availed Anderson to have had counsel. It is reasonably apparent that counsel would have insisted, as at the first trial, upon relying on insanity, which defense was of doubtful efficacy because of the medical opinions that Anderson was legally sane. The defense of conspiracy unquestionably could not have been presented with sincerity by counsel. Actually, by reason of his belief in it, Anderson was best qualified to present this defense himself.

In view of all of the circumstances we cannot say that Anderson was deprived of a fair trial, or of his right to counsel under the state and federal constitutions, by being permitted at his insistence to represent himself without counsel.

A closely related contention is that the court erred in not impaneling a separate jury, in accordance with Section 156 of the Criminal Code of Practice, to try the question of whether Anderson was presently of unsound mind and therefore not capable of being tried. The holding of such an inquest is within the sound discretion of the trial court. Robinson v. Commonwealth, Ky., 243 S.W.2d 673; Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d 1; Denny v. Commonwealth, 274 Ky. 419, 118 S.W.2d 778. In view of the psychiatrists’ reports and the other factors above mentioned, we cannot say that the court abused its discretion in not holding such an inquest. As we construe the Code provision it is not sufficient to preclude a trial that the defendant have a mental unsoundness in one particular area, if generally his thought processes and his powers of organization and reasoning are intact. Here the evidence was that Anderson’s mental illness was limited to the area of certain delusions.

It is next contended that the court erred to Anderson’s prejudice in conducting night sessions during the course of the trial. The first day of the trial, a Monday, was devoted to the selection of the jury. On Tuesday the taking of evidence began. The morning session ran from 9:30 to 1:30 and the afternoon session from 3:00 to 6:30. Over Anderson’s objection a night session was held, running from 8:00 to 11:30. On Wednesday the morning session was from 10:00 to 12:15, the afternoon session was from 1:45 to 5:30, and there was a night session from 7:30 to 9:30. On Thursday there was another night session, lasting until 10:00 p. m. On Friday the afternoon session ended at 4:30 and there was a short night session from 7:30 to 8:35. At that time the evidence was completed. The trial concluded with the holding of the closing arguments on Saturday afternoon.

The argument is that Anderson was prejudiced by the night sessions because they exhausted him and because they did not leave his evenings free to make preparation for the following day sessions. With respect to the matter of lack of time for preparation it must be remembered that Anderson had gone through two previous trials, which afforded him a great deal by way of preparation. Also, the fact that he had to make his own preparation was due to his voluntary act in rejecting counsel. With respect to the matter of exhaustion, it is apparent from the record that the length of the sessions was due almost entirely to the tactics of Anderson in engaging in endless and repetitious cross-examination of the Commonwealth’s witnesses. The record shows that of the 951 pages of transcript embodying the testimony for the Commonwealth, only 109 pages consisted of direct examination of Commonwealth witnesses. The second trial, by reason of similar tactics of Anderson, had lasted three weeks.

Under the particular circumstances we do not feel that the court abused its discretion in attempting to confine the period of the trial to a reasonable number of days. The record does not reflect that Anderson was actually prejudiced or impaired in the presentation of his defense by being compelled to undergo the night sessions. See Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544.

It is contended that improper and prejudicial comments on Anderson’s failure to testify in his own behalf were made by the Commonwealth’s attorney. During the closing argument the latter said:

“Now I want to remind you of one thing, the defendant put twenty-five witnesses on that stand but from October 26, 1958 until today not a single witness put on there by the defendant has denied this killing.
“It has not been denied. Now remember that.”
* * * ⅜ * *
“He keeps harping about little Audrey and her testimony about the details of Dr. Terry’s life but again not a single person took the stand out of the twenty-five that he put on there that denied anything she said, not one of them.”

These comments fall into the class of indirect references, which are not considered prejudicial unless they are reasonably certain to direct the jury’s attention to the defendant’s failure to testify. Neal v. Commonwealth, Ky., 302 S.W.2d 573. Statements to the effect that the Commonwealth’s evidence was “not denied,” or was “uncontradicted by any witness,” or that “No one denies the commission of the crime,” when not unduly repeated or emphasized, have been held not prejudicial. See Johnson v. Commonwealth, 94 S.W. 631, 29 Ky.Law Rep. 675; Farley v. Commonwealth, 165 Ky. 600, 177 S.W. 431; Wallace v. Commonwealth, 167 Ky. 277, 180 S.W. 381; Ridner v. Commonwealth, 242 Ky. 557, 46 S.W.2d 1102; Hanks v. Commonwealth, 248 Ky. 203, 58 S.W.2d 394; Neal v. Commonwealth, Ky., 302 S.W.2d 573. It has been held not improper to comment on the failure of the defendant to introduce other witnesses in his behalf. Lake v. Commonwealth, Ky., 104 S.W. 1003.

The fair import of the comments here involved is that none of the witnesses put on by the defendant denied the fact of the killing, and only by remote indirection do they call attention to the fact that the defendant himself did not testify. In our opinion these comments do not fall into the prejudicial category.

During his dosing argument the Commonwealth’s attorney also mentioned the testimony of the arresting officers that when Anderson was apprehended and asked if he had killed Dr. Terry his answer was simply, “No comment.” The attorney commented on this to the effect that an innocent man would have responded to the question hy denying the killing. It is argued that this reference and comment amounted to calling the attention of the jury to the defendant’s failure to testify.

The testimony as to Anderson’s failure to deny the killing in response to the •officers’ question when apprehended was competent evidence. See Barton v. Commonwealth, 240 Ky. 786, 43 S.W.2d 55; State v. Bartlett, 55 Me. 200; People v. Richardson, 83 Cal.App. 302, 256 P. 616. Therefore, it was not improper for the Commonwealth’s attorney to call attention to that testimony in his closing argument. It did not constitute a violation of the rule against commenting on the defendant’s failure to testify at the trial. See Poyner v. Commonwealth, 274 Ky. 813, 120 S.W.2d 649.

Several times during the course of the trial Anderson, in examining or cross-examining witnesses, made direct statements of fact to which the Commonwealth’s attorney objected on the ground that the statements were not under oath and not from the witness stand. In one objection the attorney said, “If you want to testify you should take that stand.” It is contended that the objection and comment had the prejudicial effect of calling to the jury’s attention the failure of the defendant to testify. We find no merit in this contention. The Commonwealth’s attorney was entitled to object to Anderson’s making statements of fact in examining witnesses, and it would have been difficult to make a proper objection in any other form than that he employed. Also, the objections did not point up a failure to testify, but rather an attempt to testify without being under oath.

It is suggested that attention was again improperly called to the failure of the defendant to testify when, at the beginning of the presentation of the defendant’s case, the Commonwealth’s attorney asked the court to advise the defendant that if he wished to testify himself he must do so before calling any other witness. At the time this request was made it was not known whether the defendant did intend to testify, so it could not constitute a comment on failure to testify. In view of Anderson’s lack of extensive experience in the trial of cases it may be considered to have been merely a helpful gesture on the part of the Commonwealth.

The contention is made that the Commonwealth’s attorney improperly made reference to the parole law in his closing argument, by the following statements:

“You will note in those instructions that there is no such thing as life without parole in these instructions, no such law has been passed.
⅜ ⅜ ⅝ ⅜ ⅜ ⅜
“Well, gentlemen, let me say this to you, do not, do not return a verdict under which he will get the gun back and at some time this man, through revenge can kill again. Let’s not, let’s not, gentlemen have the blood of some other victim on our hands because we were afraid to meet face to face the full responsibility which fate has dealt us.”

The first of these statements was in response to a portion of Anderson’s closing argument in which he had made reference to the possibility of imposing punishment of life imprisonment without parole. A bill to permit such punishment for murder had been introduced in the Legislature but had failed to pass. We think the statement was proper by way of response and that it did not urge the possibility of parole as a reason for imposing the death penalty so as to be prejudicial within the principles laid down in Broyles v. Commonwealth, Ky., 267 S.W.2d 73, 47 A.L.R.2d 1252.

The second statement again was in response to a portion of Anderson’s argument, in which he had pointed to the gun introduced in evidence and said “the gun is my gun and I want it back.” The statement in no way constituted a reference to the parole law.

It is argued that the second statement was an improper attempt to invoke prejudicial influences. Reliance is had on Berry v. Commonwealth, 227 Ky. 528, 13 S.W.2d 521, 530, where the argument held prejudicial was: “Send him to the penitentiary * * * and in a few years some softhearted Governor will pardon him and turn him loose on society to kill somebody else.” In that case the defense was insanity, and the evidence had disclosed that on two occasions prior to the killing the defendant had been committed to an asylum but had been released. Following his first release he had attempted suicide and following the second he had committed the homicide for which he was then being tried. The argument was held prejudicial because it was calculated to influence the jury to consider the ineffectiveness of previous determinations of insanity of the defendant. There was no such situation here. It seems to us that so long as death continues to be a permissible punishment the prosecuting attorney must be allowed in some way to ask the jury to impose that punishment and that for him to urge that the death penalty should be imposed as a protection to society is a permissible form of argument.

Another contention is that the instruction stating what punishments could be imposed upon a finding of guilt was prejudicially erroneous in that it listed death before life imprisonment, whereas the statute, KRS 435.010, lists life imprisonment first. It is argued that putting death first in the instruction gave it undue prominence and suggested to the jury that death was the first choice. We are not convinced that the order in which the penalties were stated in the instruction could have had any real significance to the jury. It is our opinion that the failure of the court to follow literally the words of the statute was not prejudicial. While the order of the penalties was changed in the 1942 revision of the statutes it is apparent from an examination of other criminal statutes that this was done merely to establish uniformity and consistency in the listing of alternative penalties.

The claim is made that error was committed in permitting the jurors to make telephone calls to their homes after they had been sworn and the indictment had been read to them but before the taking of evidence began. These calls were made in the presence of all the jurors and of a deputy sheriff. An affidavit of the latter shows that the calls related merely to arrangements for clothing and toilet articles anticipated to be necessary by reason of the confinement of the jurors during the course of the trial. There was no separation of the jury as in Wells v. Commonwealth, 313 Ky. 371, 231 S.W.2d 30. We think the claim of error is not well taken. See Glenday v. Commonwealth, 255 Ky. 313, 74 S.W.2d 332.

A further contention is that the trial court committed error in permitting one of the witnesses for the prosecution, who was an attorney, to remain in the courtroom when other witnesses were excluded by rule under CR 43.09 (which is applicable to criminal cases by reason of KRS 447.-155). This contention cannot be upheld, in view of the specific holding in Allen v. Commonwealth, 10 Ky. 582, 9 S.W. 703, that the rule does not apply to attorneys of the court.

Finally, it is argued that the defendant was prejudiced in the presentation of his case by the fact that a number of the witnesses subpoenaed by him were not present in court on the opening day of the trial and some did not appear at such a time as to enable him to present them in the order in which he desired. He had summoned some 85 witnesses and obviously it was not feasible for all of them to be present all during the trial. It is not shown that he was deprived of the testimony of any witness nor is it pointed out in what specific way he suffered prejudice by reason of the order in which he was compelled to present his witnesses. Under these circumstances we find no substantial violation of his rights.

Upon an examination of the entire record it is our opinion that no error was committed prejudicial to the substantial rights of the appellant, that there was no violation of due process, and that he received a fair trial.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Charles ROBERTSON, Appellant, v. George LAND, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.
    Denney & Landrum, Lexington, for appellant.
    Edwin O. Davis, Louisville, Charles Wylie, Lexington, for appellee.
   CLAY, Commissioner.

Plaintiff suffered severe personal injuries when he was struck from behind by a truck which he was towing with his tractor. The jury awarded him something over $7,000 damages and the defendant appeals on the sole ground that he was entitled to a directed verdict (and subsequently a judgment n. o. v. under CR 50.02).

Early on a wintry morning plaintiff with his tractor was towing defendant’s disabled, large flatbed truck on a farm road. The motor on the truck would not start and the parties were attempting to maneuver it into a position where it would coast downhill. The truck was towed from the rear by a double log chain about five or six feet in length. The defendant was in the cab of the truck steering it with his foot on the brake. The plaintiff was driving the tractor forward down the hill.

The accident happened when the truck, coasting on the incline, accelerated in speed faster than the tractor; thereby overrunning it with the result that the truck bed rode up on the tractor wheel and struck the plaintiff from behind. Apparently the defendant failed to control the movement of the truck by sufficient use of his brakes. He said he “just sat there and watched it happen”.

The court instructed the jury concerning the respective duties of the plaintiff and the defendant to exercise ordinary care. Defendant, apparently conceding that his negligence was a question for the jury, contends that as a matter of law plaintiff was contributorily negligent in assuming the risk. Defendant relies principally on the cases of Porter v. Cornett, 306 Ky. 25, 206 S.W.2d 83; Jackson v. Kreeger et al., Ky., 242 S.W.2d 753; and Marks v. Goldstein, Ky., 266 S.W.2d 104. In all of those cases an accident happened as a natural result of an appreciated danger in an obviously hazardous enterprise. The risk assumed was that of an occurrence which could be reasonably anticipated. In other words, the accident grew out of an apparent risk inherent in the hazardous situation.

In the present case the possibility that the truck, being independently operated by the defendant, would run over the tractor was not an obvious danger or one that should necessarily have been anticipated by the plaintiff, even though the truck had once before coasted into the tractor as it was making a sharp turn. The accident was caused, not by an emergency or a danger inherent in the operation, but by the failure of defendant to maintain control of his vehicle. Such active negligence the plaintiff, as a matter of law, was not required to foresee.

As pointed out in Dean v. Martz, Ky., 329 S.W.2d 371, the essential element of assumption of risk is appreciation of the danger by the person injured. We cannot say as a matter of law the plaintiff should have appreciated this particular hazard and therefore assumed the risk of injury.

The judgment is affirmed.

STEWART, J., dissents.


text:
    Denver Clay MARR et al., Appellants, v. FALLS CITY STONE COMPANY, Appellee. SILLIMAN, Appellant, v. FALLS CITY STONE COMPANY, Appellee. Denver Clay MARR et al., Appellants, v. DERBY CONSTRUCTION COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.

      J. W. Jones, Louisville, for appellants.
    B. L. Shamburger, Louisville, for appel-lee.
   CLAY, Commissioner.

These consolidated appeals present a procedural nightmare. The ultimate aim of the appellant plaintiffs is to try on the merits a damage suit against the Derby Construction Company, formerly the Falls City Stone Company.

In 1955 the three plaintiffs brought suit against the R. B. Tyler Company and the Falls City Stone Company, alleging they were jointly maintaining a nuisance. In 1957 plaintiffs amended their complaints and alleged separate causes of action against these two defendants. On January 4,1958, the trial court on motion dismissed the claim against Falls City Stone Company without prejudice “on the ground of misjoinder of parties defendant”. This order was qualified by the condition “that a new suit would be filed against this defendant”, and a trial date was fixed.

Pursuant to the provision of the January 4 order of dismissal, on January 8, 1958 plaintiffs filed a separate suit against the Derby Construction Company (successor to the Falls City Stone Company). A few days thereafter this defendant answered and moved the court for summary judgment dismissing the suit on the ground it was barred by the statute of limitations. No immediate ruling was made on this motion.

When plaintiffs realized that the statute of limitations might constitute a bar to the claim asserted in their new suit filed in 1958 (which apparently would not bar the claim asserted in the suit filed in 1955), they promptly moved the court to set aside the original order of dismissal entered on January 4, 1958. This motion was overruled, plaintiffs took an appeal, and this Court dismissed the appeal on the ground the order was not final. Marr et al. v. Falls City Stone Company, Ky., 329 S.W.2d 71.

During the pendency of that appeal and after it was decided, various proceedings were had in the trial court. On June 20, 1958 the original claim against the R. B. Tyler Company was tried and adjudicated by the entry of a final judgment. On January 20, 1960 the court ruled on the summary judgment motion of the defendant Derby Construction Company in the new suit filed against it in 1958, and dismissed the action. One of the appeals before us is from this judgment.

On February 16, 1960 the trial court, on plaintiffs’ motion, made the old order of January 4, 1958 final and appealable (under CR 54.02). The second set of appeals before us is from this amended order.

It is contended by defendant Derby Construction Company that we cannot entertain the appeals from the order of January 4, 1958 (made final February 16, 1960) for the reason that it had already become final on June 20, 1958, when the claim against the R. B. Tyler Company was adjudicated. Under CR 54.02, as interpreted prior to the 1960 amendment and under the specific wording of the 1960 amendment, that former interlocutory order did become final on June 20, 1958. (This is likewise true of the trial court’s order of February 7, 1958 overruling plaintiffs’ motion to set aside the order of January 4, 1958.) No appeal was timely taken by plaintiffs after the entry of the final order in the suit against the R. B. Tyler Company on June 20, 1958, and consequently we must again dismiss the appeals from the January 4 order.

The proper construction of that order, however, is determinative of the appeal from the summary judgment granted the Derby Construction Company in the new suit against it. For misjoinder of parties, under the specific provisions of CR 21, the court should not have dismissed the original action against the Falls City Stone Company. The proper procedure would have been to sever the claim and permit the parties to proceed as in the case of separate actions. See Clay, CR 21, Comment 3.

The trial court took an unnecessary step in requiring plaintiffs actually to file a new action. However, it is not only obvious from the terms of the order of dismissal, but it appears from the affidavit of the trial judge, that the order was to have the same effect as a severence. In addition, as shown by the trial judge’s affidavit, he understood the statute of limitations would not be invoked as a defense against the new suit (if such defense was not available when the original suit was filed).

We are of the opinion that justice demands our treating the new suit against Derby Construction Company, filed pursuant to the order of January 4, 1958, as a continuation of the original proceeding. This would conform to CR 21 and to the intent manifested in that order and expressed by the trial judge. (It may be pointed out here that the judge who entered the order of January 4 retired from the office a few days thereafter, and consequently the subsequent rulings in these cases were not his.) The plea of the statute of limitations must therefore be based upon the 1955 date when the original claim was filed and not on the 1958 date when the proceedings were continued in the form of a new suit.

Because this defense was not considered on that basis, the summary judgment in the suit against the Derby Construction Company was erroneous and it must be reversed.

The appeals in the cases of Marr et al. v. Falls City Stone Company and Silliman v. Falls City Stone Company are dismissed, and the appeal in the case of Marr et al. v. Derby Construction Company is reversed for proceedings consistent with this opinion.


author: STONE, Judge.

text:
    Nadine JONES, Plaintiff-Respondent, v. Albert FRITZ, Defendant-Appellant.
    No. 7980.
    Springfield Court of Appeals. Missouri.
    Jan. 16, 1962.
    Motions for Rehearing or to Transfer Overruled Feb. 8, 1962.

      Almon H. Maus, Monett, for defendant-appellant.
    Edward V. Sweeney, Monett, for plaintiff-respondent.
   STONE, Judge.

On this appeal, defendant seeks reversal of a judgment in the sum of $10,000 for personal injuries sustained by plaintiff as the result of a vehicular collision at the intersection of Ninth and Cleveland Streets in Monett, Missouri, on October 27, 1958. Plaintiff submitted her case upon defendant’s alleged negligence in failing to stop before entering the intersection (in violation of a city ordinance) and in failing to yield the right of way. The sole issue here is whether plaintiff was contributorily negligent as a matter of law.

Ninth is a north-and-south street about thirty feet in width with a blacktop surface from curb to curb. Cleveland is an east- and-west street with a two-lane blacktop roadway (about twenty feet in width) in the center of the street and an unpaved strip (about ten feet in width) on each side of the blacktop. For more than five years prior to the collision under consideration, the intersection of Ninth and Cleveland had been “a four-way stop,” established as such by a city ordinance (received in evidence) which required all vehicles to stop before entering the intersection and provided for erection of a stop sign on each corner. At the time of accident, this intersection was protected by such signs, each of which was lettered “4 WAY STOP,” and by a blinking light, flashing red in all directions, suspended over the center of the intersection. Both plaintiff and defendant were familiar with the intersection. Plaintiff, then thirty-nine years of age, a housewife, the mother of two boys, and a part-time bookkeeper at the local radio station in Monett, was traveling east on Cleveland in a 1956 Ford tudor en route from her home to a local cold storage warehouse to get some apples for the evening meal. Defendant, then sixty-four years of age, a farmer and livestock hauler, was traveling north on Ninth in a 1955 Chevrolet automobile en route from the Parakeet Beer Tavern in Monett (where, so his story ran, he had, although “tired, wore out, not feeling good,” visited with a neighbor for “something like” one hour and forty minutes during which he ordered the familiar two short beers but left half of the second one) to his farm home some three and one-quarter miles north of the city. It was still daylight, shortly after 5:00 P.M.

Following plaintiff’s version of the accident, we read that she (alone in the Ford) drove east on Cleveland at “something around twenty, twenty-five miles an hour” until about the middle of the block west of the intersection of Ninth and Cleveland when she took her foot off the accelerator. Thereafter, she slackened speed gradually and came to a complete stop “about even with the stop sign” controlling eastbound traffic which was located on the south side of Cleveland twenty feet west of the west curb of Ninth Street. Viewing plaintiff’s testimony as a whole in the light most favorable to her, we agree with her counsel that it is fairly inferable that she stopped at a point where, in her position in the driver’s seat, she was “about even with the stop sign.” Having heretofore denied judicial knowledge of the precise distance from the front end of a Chevrolet automobile to the driver’s seat [Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 377], we do not now profess such knowledge as to a Ford automobile. But, since we need not and should not pretend ignorance concerning matters of common knowledge [Elder v. Delcour, 364 Mo. 835, 838, 269 S.W.2d 17, 19(2), 47 A.L.R.2d 370, 372; ABC Liquidators, Inc. v. Kansas City, Mo., 322 S.W.2d 876, 884(10)], we may and do know judicially that it is several (certainly no less than six) feet from the front end of a Ford automobile, of the vintage driven by instant plaintiff, to the driver’s seat. So, when plaintiff stopped, the front end of the Ford was less than fourteen feet from the west curb of Ninth Street.

As she stopped at the stop sign, plaintiff looked to her right, or toward the south, and then saw defendant’s northbound Chevrolet on Ninth Street “about even with the front doors of the high school,” and thus at a point subsequently found by actual measurement to have been one hundred thirty feet south of the south curb of Cleveland. According to plaintiff, “he (defendant) seemed to be going about thirty, thirty-five miles an hour, something like that.” It may not be inappropriate to observe here that this statement concerning the speed of defendant’s automobile and, for that matter, many of plaintiff’s statements pertaining to speeds or distances obviously were not positive declarations of fact but were so phrased and qualified that they clearly were intended to be, and indeed were, nothing more than, inexact estimates with all of the frailties inherent in that character of statement. Cf. Davidson v. King, Mo.App., 309 S.W.2d 132, 135. Defendant, no doubt in better position to know or estimate his own speed, said that he was traveling north on Ninth Street at “something like twenty-five miles an hour.” Since that estimate of defendant’s speed was not inconsistent with plaintiff’s theory of the case or any judicial admissions by her and was not contrary to physical fact, plaintiff is not hamstrung and hog-tied by her estimate of defendant’s speed but, in our consideration of the issue as to her contributory negligence, is entitled to the benefit of defendant’s estimate. Whatever the precise speed of defendant’s Chevrolet may have been when plaintiff saw it one hundred thirty feet south of the intersection, there was no objection when plaintiff was asked on direct examination, “was there anything about his (defendant’s) speed, considering the distance that he was away, that alarmed you or led you to believe he wouldn’t be able to stop,” and likewise no motion to strike plaintiff’s answer, “no, nothing whatsoever”; and, when counsel inquired on cross-examination whether defendant’s speed raised “any alarm or concern as to whether or not he might stop at this intersection,” plaintiff responded, “no, it didn’t, because I knew that there was a four-way stop there, he was supposed to by law stop and he still had plenty of time to put on his brakes.” In the circumstances reflected by the record, the quoted testimony was not without probative value.

After observing defendant’s automobile, plaintiff looked to her left or to the north and then straight ahead. Seeing no other person or vehicle, plaintiff “started up slow, just like you normally would” and proceeded into the intersection at an attained speed of “something around five, six, seven miles an hour, somewhere along in there.” Plaintiff said that “at five or six miles an hour, (she) could stop * in seven or eight or ten feet.” However, it is not clear whether this estimate included the distance traveled during the standard reaction time of three-fourths second (which, at six miles per hour, would have been 6.6 feet), and there was no estimate of stopping distance at seven miles per hour. No horn was sounded by defendant at any time; but, as plaintiff put it, “something told me to look— I don’t know what” when “I was about the middle * * * of the intersection” (explained as meaning that, in her position in the driver’s seat she was in the middle of Ninth Street). Then looking to her right or to the south a second time, she saw defendant’s northbound Chevrolet with its front end about even with the south curb-line of Cleveland and thus “something in the neighborhood of ten or twelve feet” from the right side of plaintiff’s eastbound Ford. At that time, defendant was traveling “approximately the same speed” as when first observed by plaintiff one hundred thirty feet south of the intersection. He “couldn’t possibly” have stopped at the stop sign controlling northbound traffic which was located on the east curb of Ninth Street eighteen feet south of the south curb of Cleveland. Plaintiff immediately attempted to accelerate speed and swerve to her left; but, within a split second, the front end of defendant’s northbound Chevrolet struck the center of the right side of plaintiff’s eastbound Ford. At the moment of impact, the front wheels of plaintiff’s automobile were about even with the east curbline of Ninth Street and the right side of that ve-hide was approximately twelve feet north of the south curbline of Cleveland. The right side of defendant’s automobile was about five feet west of the east curbline of Ninth. That vehicle did not swerve in either direction prior to the crash.

Reduced to its simplest terms, the burden of defendant’s appellate argument is that plaintiff was negligent as a matter of law because, having observed defendant’s northbound Chevrolet as she (plaintiff) stopped “about even with the stop sign” west of the intersection, she thereafter entered the intersection and proceeded to the middle of Ninth Street before looking again to her right or to the south. In this connection, defendant’s counsel emphasizes that the speed limit was twenty-five miles per hour, that plaintiff estimated defendant’s speed at thirty to thirty-five miles per hour, and that, when asked whether she was “familiar with how many feet it would take to stop a 1956 Chevrolet automobile” traveling at that speed, she said, “no (sic) necessarily.” But, as we have pointed out, plaintiff was (and is) entitled to the benefit of defendant’s estimate of his speed, towit, twenty-five miles per hour, and to her own testimony (received without objection on direct examination and elicited by defendant’s counsel on cross-examination) to the effect that the speed of defendant’s automobile gave her no cause for alarm or concern as to defendant’s ability to stop before reaching the intersection. We note also that the photographs in evidence show that defendant, northbound on Ninth Street, was traveling upgrade as he approached this intersection. Even as we may not know judicially the precise distance within which a certain automobile may be stopped under given conditions but may recognize limits within which a stop could be made [Nelms v. Bright, Mo. (banc), 299 S.W.2d 483, 490(17)], it would seem that, although the triers of the facts properly could not have ascribed, and we do not ascribe, to instant plaintiff knowledge of the precise distance within which defendant’s northbound Chevrolet could have been stopped under the conditions prevailing when plaintiff observed it one hundred thirty feet south of the intersection, she properly might have been credited by the triers of the facts, and here may be credited, with the reasonable judgment of an average motorist as to limits within which that vehicle could have been stopped. Thus, although we do not, and instant plaintiff did not, know the precise distance within which defendant’s northbound Chevrolet traveling at twenty-five miles per hour could have been stopped under the conditions then prevailing, we believe that we are permitted judicial knowledge that it might have been stopped in a considerably shorter distance than one hundred thirty feet and that the triers of the facts reasonably might have inferred and found that, when plaintiff saw defendant’s automobile one hundred thirty feet south of the intersection, she then had the right to assume that defendant could and would stop before entering the intersection, as it was his duty to do.

Although we entertain no doubt but that the jurors properly might have found that plaintiff was not negligent in entering the intersection, we agree with defendant’s counsel that this did not confer upon plaintiff an unrestricted license or absolute right to proceed through the intersection blindly and in utter disregard of motorists on the intersecting street [Pitts v. Garner, Mo., 321 S.W.2d 509, 518-519; Politte v. Miller, Mo.App., 301 S.W.2d 839, 842]; and, if and when the developing situation became such that plaintiff, in the exercise of the highest degree of care, should have become cognizant that defendant either could not or would not stop, plaintiff immediately would have been charged with the legal obligation to take evasive action. Myers v. Karchmer, Mo., 313 S.W.2d 697, 704(8); Stone v. Reed, Mo.App., 247 S.W.2d 325, 329(2). But, plaintiff’s duty as she proceeded into the intersection was to exercise the highest degree of care commensurate with the circumstances, one of which was the stop sign directed to northbound vehicles on Ninth Street [Witt v. Peterson, Mo., 310 S.W.2d 857, 860; Collier v. St. Louis Public Service Co., Mo.App., 298 S.W.2d 455, 460]; and, if plaintiff stopped before entering the intersection, carefully looked ahead and laterally, and then saw no vehicles whose approach reasonably appeared to present any danger, her continuing duty to maintain a careful and vigilant lookout ahead and laterally ahead [Pitts v. Garner, supra, 321 S.W.2d loc. cit. 519(13)] should not be construed as requiring a constant swinging of her head from side to side or an uninterrupted watch toward the south [Schmittzehe v. City of Cape Garardeau, Mo., 327 S.W.2d 918, 923(5); 60 C.J.S.., Motor Vehicles, § 287, p. 672] and may not be transmogrified into a mandatory obligation to accomplish the impossible by keeping a continuous lookout in all directions at the same time. O’Bryant v. Black and White Cab Co., Mo.App., 350 S.W.2d 833, 837-838(5); Burke v. Renick, Mo.App., 249 S.W.2d 513, 516; Albert H. Hoppe, Inc. v. St. Louis Public Service Co., Mo.App., 227 S.W.2d 499, 502(7), affirmed on this point 361 Mo. 402, 403, 235 S.W.2d 347, 348(1), 23 A.L.R.2d 846.

If plaintiff had looked to her right or to the south continuously (though that was not her legal duty), no doubt impending danger would have become reasonably apparent at some point and time before she (in her position in the driver’s seat) had reached the center of Ninth Street and the front end of defendant’s northbound Chevrolet had reached the south curbline of Cleveland. But, it by no means follows, that we should declare plaintiff contribu-torily negligent as a matter of law. For,, there was no evidence in plaintiff’s case (or,, for that matter, in the entire record) which would permit us to find with any substantial measure of accuracy and assurance (a) the position of either vehicle when such impending danger reasonably might have become apparent to plaintiff or (b) that plaintiff thereafter could have avoided the collision. Cf. Hunt v. Babb, Mo.App., 340 S.W.2d 177, 180. “The rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must be such as to enter into and form the direct,, producing, and efficient cause of the casualty, and absent which the casualty would not have happened”; and numerous Missouri cases arising out of intersectional collisions-have recognized that the failure of a plaintiff driver to maintain a more vigilant lookout and to make earlier discovery of impending danger does not justify a directed' verdict for defendant unless it may be found and declared, as a matter of law, that plaintiff’s failure to make such earlier discovery was a proximate cause of the collision in that plaintiff thereafter could have averted the collision.

At the moment of impact, the front wheels of plaintiff’s eastbound Ford were-about even with the east curbline of Ninth Street, and thus the front bumper of that vehicle was a foot or so beyond and outside the east line of the intersection. The left side of defendant’s northbound Chevrolet was then about eleven feet west of the east curbline (and about nineteen feet east of the west curbline) of Ninth Street. Assuming that plaintiff’s estimate of her stopping distance included reaction time and accepting (for the purposes of this discussion) her estimate of ten feet, it is apparent that, to have stopped short of the path of defendant’s northbound Chevrolet, it would have been necessary for plaintiff to have become cognizant of impending danger, i. e., that defendant either could not or would not stop or yield the right of way to her, when the front end of her eastbound Ford was about twenty-two feet west of the point where it was at the moment of impact (and about nine feet east of the west line of the intersection). Likewise using plaintiff’s speed estimate of six miles per hour for her automobile, 2.5 seconds elapsed while she traveled those twenty-two feet. During the same 2.5 seconds, defendant’s northbound automobile (at twenty-five miles per hour) traveled approximately ninety-two feet. So (on these estimates), when the front end of plaintiff’s eastbound automobile passed the point where it would have been possible for her to have initiated effective evasive action, the front end of defendant’s northbound automobile would have been some eighty feet south of the south line of the intersection (for, at the moment of impact, the front end of that vehicle was about twelve feet into the intersection). Whether, with the front end of plaintiff’s eastbound Ford already nine feet into the intersection and the front end of defendant’s northbound Chevrolet still eighty feet south of the intersection, plaintiff should have been charged with such notice of impending danger as to impose an immediate duty to take evasive action would, in our view of the situation, have been for the triers of the facts; and, whether plaintiff’s failure to look to the south after the front end of her automobile was more than nine feet into the intersection was a proximate cause of the collision likewise would have been for the jurors.

We hasten to add that we do not rest our holding upon so insubstantial a foundation as the foregoing computation. In fact, we do not commend the use, or recognize the reliability, of such computations, which tend to create superficially impressive, but ofttimes cruelly deceptive, mathematical mirages having no more substance than the elements out of which they are conjured, namely, estimates almost always incapable of precise acertainment or confirmation and too often spawned in avarice or expediency. Recognizing also that motorists do not carry (and, if they did, could not utilize) stop watches to clock elapsed times and slide rules to make lightning calculations, we nevertheless have indulged the temptation to follow our erudite and esteemed brethren of the bench into these nebulous fields [e. g., Schmittzehe v. City of Cape Girardeau, supra, 327 S.W.2d loc. cit. 923; Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, 476-477] simply to illustrate permissible inferences which might be drawn from the record before us. Under the injunction that the issue of plaintiff’s contributory negligence was for the jury unless, from all of the evidence and the inferences fairly deducible therefrom, when viewed in the light most favorable to plaintiff, the only reasonable conclusion was that plaintiff was guilty of negligence proximately causing her injury [Kickham v. Carter, Mo., 314 S.W.2d 902, 908(8) ; Pender v. Foeste, Mo., 329 S.W.2d 656, 659(3); Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 19(1)], we are impelled to conclude that the trial court did not err in refusing to declare plaintiff contributorily negligent as a matter of law.

Able counsel for defendant has, in painstaking and methodical fashion, pointed out distinguishing factual aspects of several cases cited in plaintiff’s brief (and in this opinion), but there are equally-important distinctions between the instant action and those cited in defendant’s brief. No two cases are poured in the same factual mold and, in the final analysis, the issue of plaintiff’s contributory negligence vel non must, in each instance, be ruled upon the particular facts and circumstances there presented. See the pertinent comment in Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 273. Believing that no useful purpose would be served by tedious factual review of defendant’s cited cases, suffice it to say that each has been considered carefully and none, in our opinion, militates against the conclusion here announced.

The judgment is affirmed.

RUARK, P. J., concurs.

McDOWELL, J., concurs.

      . Bowman v. Ryan, Mo.App., 343 S.W.2d 613, 619(8); Montgomery v. Petrus, Mo.App., 307 S.W.2d 24, 27(3, 4). See also Morgan v. Thompson, Mo., 325 S.W.2d 794, 797; Williams v. Ricklemann, Mo., 292 S.W.2d 276, 280(2); Smith v. Siercks, Mo., 277 S.W.2d 521, 525(3).

      . Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42(1); Cox v. Frank L. Schaab Stove & Furniture Co., Mo.App., 83 S.W.2d 211, 216(4); Ridenhour v. Oklahoma Contracting Co., Mo.App., 45 S.W.2d 108, 112(4). See also Steeley v. Kurn, 348 Mo. 1142, 157 S.W.2d 212, 213(4); Doyle v. St. Louis Merchants’ Bridge Terminal Ry. Co., 326 Mo. 425, 31 S.W.2d 1010, 1012(4), certiorari denied 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1435; Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 302(9).

      . Although we need not and do not profess such “knowledge” here, we note that, in Chawkley v. Wabash Ry. Co., 317 Mo. 782, 797, 297 S.W. 20, 24, our Supreme Court, en bane, thought it “a matter of common knowledge” that an automobile traveling 20 miles per hour could be stopped within 20 to 25 feet, and that the Kansas City Court of Appeals quoted the same stopping distances in Cross v. Wears, Mo.App., 67 S.W.2d 517, 518, and in Leavell v. Thompson, 238 Mo.App. 130, 137, 176 S.W.2d 854, 857(2). (But, see Cluck v. Abe, 328 Mo. 81, 88, 40 S.W.2d 558, 561.) In Crane v. Sirkin & Needles Moving Co., Mo.App., 85 S.W.2d 911, 914 (certiorari quashed State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50, 53), the St. Louis Court of Appeals judicially knew that a moving van “traveling at a speed of 25 to 30 miles per hour ⅞ ⅜ * could have been stopped in a much less distance than that available as shown by the evidence,” towit, in less than 130 to 140 feet; and, in Danklef v. Armbruster, Mo.App., 91 S.W.2d 660, 663(2), the same court judicially knew that a delivery truck, traveling 25 miles per hour, could have avoided a collision either by swerving or by stopping within the distance of 100 feet there available. The table in Blaslifield’s Cyclopedia of Automobile Law and Practice, Yol. 9C, § 6237, loe. cit. 413, to which our Supreme Court sometimes refers [e. g., Adkins v. Boss, Mo., 290 S.W.2d 139, 143; Cooksey v. Ace Cab Co., Mo., 289 S.W.2d 40, 44; Christian v. Jeter, Mo., 287 S.W.2d 768, 771(6)], shows stopping distances (including distances traveled during reaction time) of 40 feet for an automobile traveling 20 miles per hour and of 73 feet for 30 miles per hour. The conservative Missouri Drivers Guide widely distributed by our State Highway Patrol [see Breshears v. Myers, Mo., 266 S.W.2d 638, 641, where a patrolman testified from experience that actual stopping distances were less than those in the guide] shows stopping distances (including distances traveled during reaction time) of 43 feet for an automobile traveling 20 miles per hour and of 79 feet for 30 miles per hour. And, in Appelhans v. Goldman, Mo., 349 S.W.2d 204, 207, there was no objection to the testimony of a “drivers education” teacher that “the total stopping distance for a car traveling 30 m. p. h. was 78.4 feet and for a car traveling 25 m. p. h. was 60.2 feet.”

      . Pitts v. Garner, Mo., 321 S.W.2d 509, 518; Findley v. Asher, Mo., 334 S.W.2d 70, 73; Stone v. Reed, Mo.App., 247 S.W.2d 325, 329; Lord v. Austin, Mo.App., 39 S.W.2d 575, 577(5); 60 C.J.S., Motor Vehicles, § 361, loc. cit. 863.

      . Howard v. Scarritt Estate Co., 267 Mo. 398, 402, 184 S.W. 1144, 1145; Albert H. Hoppe, Inc. v. St. Louis Public Service Co., Mo.App., 227 S.W.2d 499, 502(4), affirmed on this point 361 Mo. 402, 403, 235 S.W.2d 347, 348(1), 23 A.L.R.2d 846; Meredith v. Terminal R. R. Ass’n of St. Louis, Mo.App., 257 S.W.2d 221, 226(13); Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 377(14); Fann v. Farmer, Mo.App., 289 S.W.2d 144, 149(10).

      . Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 923-924; Cooksey v. Ace Cab Co., supra, 289 S.W.2d loc. cit. 44(4); Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, 476-477; Hunt v. Babb, Mo.App., 340 S.W.2d 177, 180; Albert H. Hoppe, Inc. v. St. Louis Public Service Co., supra, 227 S.W.2d loc. cit. 502-503.

      . Although all are factually distinguishable, the following cases afford, we think, adequate support for our holding: Dye v. Geier, Mo., 345 S.W.2d 83, 87-88(3, 4); Schmittzehe v. City of Cape Girardeau, supra, 327 S.W.2d loc. cit. 922-924(2-5); Stewart v. Boring, Mo., 312 S.W.2d 131, 133; Moore v. Southwestern Bell Tel. Co., Mo., 301 S.W.2d 817; Cooksey v. Ace Cab Co., supra; O’Bryant v. Black and White Cab Co., Mo.App., 350 S.W.2d 833; Stonefield v. Flynn, supra, 347 S.W.2d loc. cit. 476-477(3, 4); Hunt v. Babb, supra; Montgomery v. Petrus, supra; Collier v. St. Louis Public Service Co., Mo.App., 298 S.W.2d 455; Burke v. Renick, Mo.App., 249 S.W.2d 513; Stone v. Reed, supra; Rayburn v. Fricke, Mo.App., 243 S.W.2d 768; Albert H. Hoppe, Inc. v. St. Louis Public Service Co., supra; Ritzheimer v. Marshall, Mo.App., 168 S.W.2d 159.

      . Downing v. Dixon, Mo., 313 S.W.2d 644; Witt v. Peterson, Mo., 310 S.W.2d 857; Pennington v. Carper, Mo., 309 S.W.2d 596; Burton v. Moulder, Mo., 245 S.W.2d 844; Frandeka v. St. Louis Public Service Co., Mo., 234 S.W.2d 540; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Major v. Davenport, Mo.App., 306 S.W.2d 626; Folluo v. Gray, Mo.App., 256 S.W.2d 273.

      . Harding v. Peterson, Mo.App., 227 S.W.2d 88, 90(1); McFetridge v. Kurn, Mo.App., 125 S.W.2d 912, 919(11); Sisk v. Chicago, B. & Q. R. Co., Mo.App., 67 S.W.2d 830, 836(12); Scanlan v. Kansas City, 223 Mo.App. 1203, 19 S.W.2d 522, 524(2).


author: CULVER, Justice.

text:
    CITY OF SAN ANTONIO, Petitioner, v. Homer ESQUIVEL, Individually and as next Friend of his minor daughter, Teresa Esquivel, Respondents.
    No. A-8665.
    Supreme Court of Texas.
    Feb. 7, 1962.
    Crawford B. Reeder, City Atty., Arthur C. Troilo, Jr., Asst. City Atty., San Antonio, for petitioner.
    Arthur A. Domangue, San Antonio, for respondents.
   CULVER, Justice.

The respondent, Esquivel, brought this suit individually and in behalf of his minor daughter eleven years of age, against the City of San Antonio for damages, alleging an injury to the child caused by the collapse of a sidewalk on which she was walking.

The trial judge found that the City of San Antonio was negligent in failing to keep the sidewalk and storm sewer in a reasonably safe condition and also negligent in failing to inspect the premises for at least two years prior to the time of the accident. The judge further found that each of these acts of negligence was a proximate cause of the injury sustained. As a matter of law lie concluded that the doctrine of res ipsa loquitur is not applicable to the facts in this case. Judgment was accordingly entered for the respondent and the Court of Civil Appeals has affirmed. 349 S.W.2d 295.

The city maintains that there is no evidence to support the findings of the trial court, namely, that the failure to keep the sidewalk in a reasonably safe condition was negligence and that the failure to inspect was a proximate cause. By his cross point respondent urges that the trial court erred in concluding that the doctrine of res ipsa loquitur does not apply. We agree with the contentions of the city and with the trial court’s action in rejecting the application of res ipsa loquitur. Therefore the cause must be reversed.

The evidence shows that the portion of the sidewalk in question lay over a storm sewer and had been constructed some years before. The record is wholly silent as to what caused the sidewalk to collapse nor does it appear that prior to the collapse there were any visible defects. It is shown that there had been no inspection by the agents of the city for at least two years.

The rule of evidence, generally known as res ipsa loquitur, cannot be invoked in this case because the city does not have exclusive control over its sidewalks. San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 32 S.Ct. 399, 56 L.Ed. 680; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659; Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445; Washington v. Missouri, K. & T. Ry. Co., 90 Tex. 314, 38 S.W. 764. For, as said in Morrow v. City of Harlan, Ky., 344 S.W.2d 401, there is great opportunity for intervening and independent causes.

It is a well recognized rule of law that before a city may be held liable for injury caused by a defect in the city sidewalks or street the city musí have had actual or constructive notice of such defect. Hanks v. Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 83 A.L.R. 278, 1932; Texas Co. v. Grant, 143 Tex. 145, 182 S.W.2d 996, 1944; City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125, 1945. Here the city had no notice of either character. It is not known what the defect was nor how long it had existed. In apt language, the law in this respect is stated in City of Galveston v. Smith, 80 Tex. 69, 15 S.W. 589:

“ * * * In order to charge the defendant [City] with negligence, it must appear from the evidence, not only that the said covering to the drain was defective at the time of the alleged injury, but also either that such defect was actually known to the defendant, through some of its officers or servants having charge of such matters, or that the defect had existed for such a length of time prior to the alleged injury that the city authorities, if exercising ordinary diligence, would or should have known of its existence.”

In that case the suit was brought to recover damages for personal injuries caused by a defective covering over a culvert, quite similar to the facts in the case here.

Conceding that there exists a duty on the part of the City of San Antonio to inspect the condition of the many miles of streets and sidewalks within the city limits, in order for the failure to perform that duty to constitute a proximate cause of the injury in such a case as this, it must be shown that such a reasonable inspection would have disclosed the defect that existed. Since there was a total absence of any evidence showing or tending to show the nature of the defect or how long it had existed, it cannot be said that, had the city made a reasonable inspection from time to time, the defects would have been discovered.

The judgments of the courts below are reversed and judgment rendered that the plaintiff take nothing.


author: PER CURIAM.

text:
    Charles V. BLANTON et al., Petitioner, v. CITY OF HOUSTON, Respondent.
    No. A-8752.
    Supreme Court of Texas.
    Feb. 7, 1962.
    Croom & Barnes, Smith & Lehmann, Cyril J. Smith, Houston, for Blanton and others.
    R. H. Burks, City Atty., Houston, Charles F. Weaver, John Gano, Asst. City Attys., for City of Houston.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in Vol. 350 at page 947 of the Southwestern Reporter, Second Series. It being made known to this Court by stipulation of the parties that this cause is now moot, it is accordingly ordered that writ of error be granted without reference to-the merits; that the judgments of the trial court and the Court of Civil Appeals be vacated, and that this cause be dismissed. Danciger Oil & Refining Company of Texas v. Railroad Commission of Texas, 122 Tex. 243, 56 S.W.2d 1075; Tarpley v. Epperson, 125 Tex. 63, 79 S.W.2d 1081; Texas & New Orleans R. Co. v. Priddie, 127 Tex. 629, 95 S.W.2d 1290; Iles v. Walker, 132 Tex. 6, 120 S.W.2d 418; University Interscholastic League v. Sims, 133 Tex. 605, 131 S.W.2d 94; Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863; Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725; Parr v. Stockwell, 159 Tex. 440, 322 S.W.2d 615; Cameron v. Saathoff, Tex., 345 S.W.2d 281; Connell v. B. L. McFarland Drilling Contractor, Tex., 347 S.W.2d 565.