OPINION OF THE COURT BY JUDGE CLAY
Affirming.
On June 29, 1929, Janet Lee Messersmith, a girl about ten and a half
years of age, was struck and killed by a Dodge motor delivery truck
belonging to the Ashland Sanitary Milk Company, and driven by one of its
employees. This action by her administrator to recover damages for her
death resulted in a verdict and judgment in his favor for $15,000. The
Ashland Sanitary Milk Company appeals.
Janet Lee Messersmitn lived with her parents on the south side of
Blackburn avenue in the city of Ashland. Blackburn avenue runs east and
west, is a paved street, and is about 20 feet in width from curb to
curb. It has no sidewalks, but a level space of about 5 feet has been
left on either side for that purpose. The Messersmith lot is 40 feet in
width and is higher than Blackburn avenue. The entrance to the house,
which is about the center of the lot, is by means of a concrete walk
about 5 feet in width. Traveling from the west on Blackburn avenue
toward the Messersmith residence there is a descending grade for a
considerable distance. The accident happened about 4 o'clock on a bright
afternoon. Accompanied by her daughter, Janet Lee, Mrs. Messersmith had
driven her Dodge sedan car downtown to do some shopping. On her return
she had a lot of groceries and provisions in the machine. On reaching a
point in the street opposite her residence, she ran the right wheels of
her machine over the curb so as to leave it parked with as little of the
machine out in the avenue as possible. According to Mrs. Messersmith,
she alighted from the car by the door at her left and stepped into the
street, and then assisted her daughter to alight through the same door.
She then started across the street. When she got to the middle of the
street she saw the truck coming about 200 feet away. She had driven an
automobile for nine years, could look at a car and tell at what speed it
was
going, and she judged that the truck was going between 40 and 45 miles
an hour. Her daughter was standing on the sidewalk when she was struck
by the truck. At the time she was struck the truck was going pretty
fast, but. the driver had his foot on the brake and had probably reduced
the speed to some extent. Elwood Blair, a mechanic who worked for the
American Rolling Mills, was in bed at the time, and his attention was
attracted by the noise of the brakes on the truck. He then went to the
window, and in his opinion the truck was running about 40 miles an hour
after the brakes had been applied. On the other hand, Claude Ireson, the
driver of the truck, testified as follows: He first saw the little
Messersmith girl and her mother when about 150 feet away. The mother was
standing at the car, seemed to be getting something out of it, and the
child was standing just slanting back from the mother. They were both on
the north side of the street and on his left. When he saw them he
raised his toe off the accelerator. At that time they were making no
effort to cross the street. When he got within 10 or 11 feet of where
they were, the child darted across the street. Her mother screamed, and
he tried to avoid hitting the child by cutting his car to the right,
thinking the child would go back. If he had been 6 inches further over
he would have missed her. His left front fender struck the child. When
within about 30 feet of the child he put his foot on the brakes. At that
time he was going between 18 and 20 miles an hour. He did not know that
the child was going across the street. At the time of the accident the
car was slowed down to about 15 miles an hour. The reason he took his
foot off the accelerator about 150 feet back was that he was afraid they
might start across the street, and there might be danger of hurting
some one. He could see the child and he thought that they would see him.
At the time he put on the brakes he was between 10 and 15 feet of where
Mrs. Messersmith was standing. Running at 15 miles an hour he could
stop within 20 or 25 feet. He cut in toward the telephone pole for the
purpose of stopping. His main purpose was not to hit the child. Russell
Rose testified as follows: He and some other children were playing in an
open field about 100 feet north of the point of accident. When Mrs.
Messersmith drove up, she got out, started up the steps, looked back and
told Janet to stay there. Janet came right on. He then looked over at
the milk truck and it hit her. The front fender struck her
first. Janet was in the street and was carrying groceries across the
street. The truck ran about 20 feet after it struck her. The witness
concluded his direct examination as follows:
"Q. 40. Did you see the little girl get out? A. Yes, Sir.
"Q. 41. Which side did she (decedent) get out? A. She got out on — the opposite side her mother did.
"Q. 42. When the little girl first got out where did she go? A. She went around back of the car.
"Q. 43. Back of their car? A. Yes, Sir.
"Q. 44. After she came around behind the car, how soon was she struck
by this car. A. I just don't know how long it was — just."
The first error relied on was the failure of the court to give an
offered instruction presenting the sudden appearance doctrine. In this
connection it is insisted that appellant was entitled to such
instruction not only on the evidence of Ireson, the driver, but on the
evidence of witness Russell Rose. Whatever may have been the view of the
court in years past, we have been inclined in recent years to confine
the sudden appearance, in so far as infants are concerned, to cases
where the injured infant leaves the sidewalk or emerges from behind
another vehicle or other obstruction, and appears on the highway in the
path of the on-coming vehicle so suddenly that the driver thereof in the
exercise of ordinary care could not have prevented the collision with
the means at hand if he had been running at a reasonable rate of speed.
Metts' Adm'r v. Louisville Gas Electric Co., 222 Ky. 551, 1 S.W.2d 985.
Whether, in view of the driver's evidence that he saw the child
standing by her mother in the street when 150 feet away, we would hold
that the sudden appearance instruction should have been given if the
witness Rose had actually testified that the child came from behind her
mother's machine and rushed suddenly in front of the approaching truck,
we need not determine. As a matter of fact, he did not say how long it
was after the child came from behind the car before it started across
the street. Thus there was no evidence tending to show that she was not
standing by her mother in full view of the driver, as he repeatedly
testified, when she started across the street. Clearly the circumstances
were not such as to call for a sudden appearance instruction.
The street was only 20 feet in width. The mother and child were
standing in the street on the south side of the car in plain view of the
driver of the truck, and only a short distance away from the path of
the truck. The situation was such that the child might be expected to
move in the pathway of the truck at any time. Notwithstanding this fact,
no warning of the approach of the truck was given, and just before the
accident the speed of the truck was about 15 miles an hour according to
the driver of the truck, and from 40 to 45 miles an hour according to
other witnesses. It would be a harsh rule were we to hold, in the face
of such clear evidence of negligence, that appellant could escape
liability on the theory that the child appeared so suddenly in the
pathway of the truck that the driver could not have avoided injuring her
if he had been running at a reasonable rate of speed.
Another error relied on is the alleged misconduct of counsel on the
voir dire examination of the jurors. The facts disclosed by the bill of
exceptions are these: Norman Berry, who was on the list, was asked to
state his occupation. He answered that he was in the real estate
business. Thereupon counsel for plaintiff inquired of him in the
presence of the remaining members of the panel whether he wrote any
insurance in connection with the real estate business, and he answered
that he did not. John S. Hager, another member of the list, was asked if
he had any connection with the Ashland Sanitary Milk Company. He
answered that he had no connection with the company other than it was a
customer of his, and he bought milk from them. He was then asked by
counsel for plaintiff what kind of a customer it was of his, and he
answered, "Insurance." Counsel inquired what kind of insurance he wrote
for the defendant, and he answered, "Fire, theft and casualty."
Thereupon counsel for plaintiff called counsel for defendant, and also
the prospective juror, John S. Hager, to the desk of the court, and
there privately, and not in a tone to be heard by other jurors, inquired
of Hager if he was on this particular risk through any policy of
insurance in any of his companies. Thereupon counsel for the defendant
moved the court to discharge the entire panel of eighteen because of
counsel's reference to insurance in the interrogation of the two jurors,
which motion was overruled. In the case where we condemned the practice
of interrogating prospective jurors with reference to accident
insurance, the
jurors were asked whether any of them owned any stock in the insurance
company which carried the indemnity policy on defendant's mine, and on
objection the attorney for plaintiff stated that he had been informed
that the coal company carried insurance in a company that would pay any
loss that might result to the defendant on the trial of the case. W. G.
Duncan Coal Co. v. Thompson's Adm'r, 157 Ky. 304, 162 S.W. 1139. It will
thus be seen that counsel for plaintiff in that case not only brought
directly to the attention of the prospective jurors the fact that
defendant carried accident insurance and that the loss would fall on
someone else, but inquired whether or not any of them owned any stock in
the insurance company which carried the indemnity policy on defendant's
mine when it was wholly improbable that such was the case, thus
evincing a lack of good faith in propounding the question. A different
situation is presented in the case under consideration. Naturally
counsel for plaintiff would not want on a jury any one who had written
indemnity insurance for the defendant, or any other insurance that would
place him under obligation to the defendant. As real estate agents
generally conduct an insurance business, it was not improper to ask
Berry if he wrote insurance, and so far as he was concerned the matter
ended with his answer in the negative. As Hager conducted an insurance
business in the city where defendant's plant was located, the
preliminary questions were not out of place, and as counsel for
plaintiff was careful not to ask in the presence of the other jurors
whether he carried the particular risk, we see no reason to doubt
counsel's good faith in the matter. We therefore hold that the trial
court did not err in refusing to discharge the entire panel.
Another contention is that the court erred in admitting the photograph
of the deceased. It is insisted that its admission was prejudicial, in
that it presented to the jury a very beautiful young girl, and was thus
calculated to excite their sympathy and prejudice. It may be conceded
that the admission of the photograph without proof of its accuracy by
the photographer was technical error, but in view of the fact that the
health, strength, mental capacity, and personal appearance of the child
were fully discussed and presented to the jury by other witnesses, we
are not inclined to hold that the admission of the photograph was
prejudicial.
Still another contention is that the court erred in not granting a
continuance on account of the absence of the witnesses, Hobart, and
Aderine Pope, for whom subpoenas had been issued and returned, "Not
executed," with the notation that they had gone to Arizona. In the
affidavit it was stated that if the witnesses were present they would
testify that they lived on Blackburn avenue across the street from the
home of the deceased and within a few yards of the scene of the
accident; that at the time of the accident they were playing in a field
about 100 feet north of the point of accident where defendant's truck
struck deceased, that they heard the brakes of the truck go on and that
they looked up immediately and saw the truck, and that it stopped almost
immediately after the brakes went on; that it went only a few feet
after the brakes were applied; and that the deceased was struck while
she was in the street and not on the curb. It was further alleged that
defendant had had no opportunity to take the depositions of the
witnesses because he did not know that the witnesses had left the
jurisdiction of the court; that if the case were continued to the next
term of the court defendant could either have them present in court or
take their depositions as it desires one or the other to be done. There
was the further allegation that the true and proper effect of the
testimony of the witnesses could not be had without their personal
presence in court. It being alleged in the alternative that defendant
could either have the witnesses present at the next term of the court,
or take their depositions, it is at once apparent that there is no
showing that their actual presence could be had. That being true, the
only way to secure their evidence was by deposition. Rarely, if ever, is
the evidence of an absent witness taken by deposition as strong as that
contained in an affidavit for continuance. In view of these
considerations, and of the fact that the affidavit for a continuance was
permitted to be read as the depositions of the absent witnesses, we
conclude that the trial court did not abuse a sound discretion in
refusing the continuance.
Lastly, it is insisted with great earnestness that the verdict is
excessive. The case is not to be determined by decisions of the long
ago. Within recent years the purchasing power of money has decreased,
and the courts are inclined to uphold larger verdicts than they were
accustomed to approve years ago. The deceased was
sound in health and of fine mental attainments, with all the
opportunities that are now open to the members of her sex. In a case of
this kind it is the province of the jury to assess the damages, and our
duty to give effect to its finding unless we can say the verdict is so
excessive as to strike us at first blush as being the result of
prejudice or passion. This we cannot do.
Judgment affirmed.
Whole court sitting.
