Opinion
November 17, 1961. Rehearing Denied January 26, 1962.
Appeal from the Circuit Court, Taylor County, Philip A. Bertram, J.
Shuffett Butler, Greensburg, Faulkner Bertram, Campbellsville, for appellant.
Robert M. Spragens, Lebandon, Abel Harding, Campbellsville, for appellee.
Appellee had the misfortune to kill a six year old boy when her automobile struck him on a highway near Campbellsville. The jury returned a verdict finding both appellee and appellant (the child's parent and administrator) guilty of negligence and therefore allowed no recovery.
The administrator on this appeal assigns 17 errors allegedly committed by the trial court.
Appellee passed a school bus, which was slowing down for the purpose of stopping, just before the accident. The deceased child was to board this bus and his mother was directing his movements from their home near the highway. She had stopped the child when he reached a "ditch" beside the road, and after observing the approach of the bus but failing to see appellee's automobile, she directed the child to go across. He started running and was struck by the automobile.
The case was submitted to the jury on standard instructions defining appellee's duties, interposing the defenses of contributory negligence on the part of the parent and sudden appearance on the part of the child, and also including a last clear chance instruction for the benefit of the plaintiff.
We have carefully examined all of the contentions of appellant, which involve admissibility and weight of the evidence, the instructions, the formal insufficiency of the verdict, and the alleged misconduct of two jurors. On the whole record we find appellant had a fair trial and there were no errors prejudicial to his substantial rights which would require reversal of the judgment.
The judgment is affirmed.