Killough v. Lee

WILLIS, J.,

pro tem.

— Respondent, as widow, brought suit for damages for the death of her husband which she alleged resulted from injuries inflicted by a passing automobile truck and trailer owned by Miller & Phillips Trucking Company and operated at the time of injury by Thomas S. Phillips, a defendant herein, which truck at about the same time had run into the rear of an automobile belonging to appellant Mrs. Lewis E. Lee and being at the time operated by her husband, appellant Lewis E. Lee. All four of the above named parties were joined as defendants, all and each being charged with negligence in general terms. Separate answers of the two groups of defendants contained denials of negligence and a plea of contributory negligence. After trial before a jury a verdict was rendered against all

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four parties, and from the judgment entered thereon Lewis E. Lee and Mrs. Lewis E. Lee have appealed. The record consists of a transcript containing the judgment roll and a bill of exceptions.

The questions raised and presented by appellants comprise two general propositions: (1) sufficiency of the evidence to sustain the verdict against these appellants and (2) errors in giving and refusing certain instructions.

The accident from which this case arose was unusual, and it appearing that the parties in their briefs cannot agree with each other’s statement of facts, we have carefully read and studied the bill of exceptions to the end that we might secure a clear understanding of the facts as set forth therein. We are of the opinion, and so hold, that the evidence adduced by plaintiff was such that different inferences might be drawn therefrom, one of which would establish a case of negligence on the part of these appellants proximately resulting in the injury and death of deceased. Under this state of the proofs it was incumbent on the trial court to deny the motion of appellants for nonsuit. Upon conclusion of the evidence there was much conflict appearing therein, and the opportunity for drawing different inferences therefrom was equal to the several situations in which the conflicting evidence possibly placed the parties. This second state of the evidence, therefore, required the trial court to deny the motion of appellants for a directed verdict. It appears from the record that the jury determined that the deceased, who was without fault, while standing near the edge of the paved portion of the highway, was struck by one of the colliding vehicles as a direct result of such collision, and that such collision was the result of the concurrent negligence of the drivers of both vehicles in operating their respective machines. We find ample support in the evidence to sustain the verdict rendered against appellants.