Meadors v. Gregory

484 S.W.2d 860, 62 A.L.R. 3d 535, 1972 Ky. LEXIS 160
Court of Appeals of Kentucky·Decided June 23, 1972·Published

Opinion

GARDNER, Commissioner.

Glenn Gregory, six years of age, was struck and killed by a car owned by appellant Sherry Meadors and driven by appellant Lauren Owens. Miss Meadors was a passenger at the time of the accident. The trial court concluded that both Miss Owens and Miss Meadors were negligent as a matter of law. The jury rendered a verdict for $5,000 in favor of the administrator of Glenn Gregory for damage to the estate, $10,000 in favor of the father of Glenn, and $10,000 in favor of the mother of Glenn, for loss of services. Judgment was entered in accordance with the verdict. Miss Owens and Miss Meadors appeal. We affirm.

The main questions presented on appeal are (1) did the trial court err in holding appellants negligent as a matter of law, and (2) did the trial court err in holding the parents not negligent as a matter of law. We believe the court was correct on both rulings.1 Appellants were women school teachers on their way to school and were within a few hundred yards of the teachers’ parking lot when the fatal accident occurred. Earlier they had phoned the principal’s office that because of heavy traffic they would be late. The accident occurred in a residential section where the traffic was light. The only eye witnesses who testified were appellants.

According to Miss Owens (the driver) she turned onto Wimstock Drive and proceeded east for a short distance when she saw perhaps seven small children in the street. They were on their way to school, proceeding in unregimented fashion. Miss Owens said the children were “ * * * all over the road, strolling to school * * When she came to within 25 to 30 feet of the children she stopped the car, then proceeded at about 15 miles per hour. She did not remember whether she blew the horn but said “ * * * they saw me and went to both sides of the road so I didn’t think I should blow the horn.” Miss Owens admitted there was no obstruction of any kind to prevent her seeing all the children at all times. She added, however, that Glenn “ * * * must have been behind maybe some taller ones, I don’t know, but he was not in the middle of the road and it was clear for me to go ahead.” Miss Owens stated with certainty that she did not see Glenn step in front of the car. She testified “I didn’t see him but he must have darted out so quick — I didn’t know what happened. Everything happened at once, I didn’t even know I hit anybody.” It was after Miss Meadors exclaimed “We’ve hit somebody” that Miss Owens brought the car to a stop some 96 feet from where the accident occurred.

[862] The testimony of Miss Meadors corroborated that of Miss Owens on all essential points. We are called on to determine if the trial court was justified in deciding that appellants were negligent as a matter of law. We believe it was.

It is noted from the testimony and photographs introduced that above the left headlight of the Meadors’ car and extending some 8 or 10 inches to the right of the headlight was a very noticeable dent. This is where the car came into contact with some part of Glenn’s body. That fact was admitted by all parties. It was uncontra-dicted that immediately after the accident Glenn was lying on the right portion of the street (right as to the direction in which the Meadors’ car was traveling) with his feet about 18 inches from the curb and his body extending at an angle toward the center of the street. There was a pool of blood where his head lay. There was no evidence as to the height of Glenn nor the height of the car at the point of impact, which was on the front of the hood and partially on top of the hood. There was no competent evidence as to whether Glenn came from the left or the right side of the street. Miss Owens knew that young children were near. It is common knowledge (and especially should have been cognizable by Miss Owens, a school teacher) that a boy six years of age has a propensity for frolicking, oblivious to the danger of moving vehicles. See United Fuel Gas Co. v. Friend’s Adm’x, Ky., 270 S.W.2d 946 (1954); Liberty National Bank & Trust Co. v. Raines, Ky., 416 S.W.2d 719 (1967); Oldham v. Adkisson, Ky., 448 S.W.2d 55 (1969). With nothing to obstruct her view, Miss Owens should have seen Glenn in front of the car. But she didn’t. Under the circumstances we believe reasonable minds could arrive at but one conclusion, namely she was negligent. Appellants cannot rely on cases such as Worrix v. Rowe, Ky., 428 S.W.2d 187 (1968), exculpating the driver where a child suddenly darts out in front of the car, for there was no such evidence in the present case.

Another of appellants’ arguments is that the court erred in absolving Glenn’s parents of negligence. It is recalled that Glenn was six years of age and was repeating the first grade because of unsatisfactory work the first year. On previous occasions the parents had seen to it that Glenn’s ten-year-old sister, or one of the older brothers, accompanied Glenn to school. The following interrogation of the mother took place:

“7 Mrs. Gregory, you were aware, weren’t you, that because of Glenn’s age that he wasn’t — didn’t really have the capacity to understand the dangers as far as the streets were concerned, and cars ?
A Yes.
8 You knew that very well, didn’t you ?
A Oh, yes.
9 And that’s why that you had your older daughter.
A (Interrupting) Yes.
9 (Continuing, simultaneously) .Accompany Glenn? And I believe that on other occasions you had had some of the other children, older children, accompany Glenn?
A Yes.”

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Meadors v. Gregory, 484 S.W.2d 860, 62 A.L.R. 3d 535, 1972 Ky. LEXIS 160 (Ky. Ct. App. 1972).

484 S.W.2d 860 (Meadors v. Gregory) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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