Affirming.
Constance R. Mann was killed in the collision of two automobiles at a street intersection in Louisville. Her executor instituted an action against the Leyman Motor Company to recover damages for the death upon the ground that the collision was the consequence of negligence on the part of its agent in driving an automobile belonging to it. The defenses interposed consisted of a denial of the allegations of negligence, and an affirmative plea of contributory negligence on the part of plaintiff's decedent. The trial resulted in a verdict for the defendant. A new trial was denied, and the plaintiff has prosecuted an appeal. In the able brief for appellant it is insisted: (1) That the verdict of the jury was palpably against the evidence; (2) that incompetent evidence *Page 641 was admitted to the prejudice of the substantial rights of appellant; and (3) that the instructions were erroneous and inadequate.
1. The accident occurred at the intersection of Jackson and Jacobs streets in the city of Louisville. The deceased, Constance R. Mann, was driving a Chevrolet car and was proceeding westerly on Jacobs street. A new Buick car belonging to the Leyman Motor Company, driven by a demonstrator, was going south on Jackson street. The collision occurred in the southwest quarter of the intersection, a few feet west of the center line of Jackson street and a few feet feet south of the center line of Jacobs street. Constance R. Mann was thrown out of her car and sustained fatal injuries. Her car was badly damaged by the impact. It rolled or was knocked a distance of twenty-five or thirty feet, stopping near the south curb on Jackson street. The Buick car stopped on the south side of Jacobs street near the curb about twenty or more feet west of Jackson street. Six witnesses, situated at various points in the vicinity of the accident, testified for the plaintiff. The accident was observed from various viewpoints. According to their testimony the Buick car was going at a high rate of speed and collided with the Chevrolet traveling at a much less rate of speed. Five of the witnesses stated that the Buick ran into the Chevrolet. One of the witnesses did not see the collision, as he was sitting in a parked car with his back to the intersection. It is sufficient to say that the plaintiff's case was made out by an abundance of positive testimony. But there was countervailing evidence. Marshall, the driver of the Buick car, was not present at the trial, but the affidavit of defendant's president was read as his testimony. The two passengers in the Buick testified for the defendant. One of them gave but few facts on the main issue, but the other testified that the speed of the Buick was less than twenty miles an hour as it approached the intersection and that the Chevrolet was going faster. The driver estimated the speed of the Buick at eighteen or twenty miles per hour as it approached the intersection, but did not estimate the speed of the Chevrolet. He did state, however, that the Chevrolet made no effort to stop until it was about the center of the street, when it swerved to the side. Circumstances were proven which the jury had a right to consider as affecting the credibility of plaintiff's case. A photograph of the Buick car taken after the collision was *Page 642
introduced in evidence, and it showed a large hole in the left rear door. It afforded mute evidence that the door of the Buick car had been hit violently by the colliding car. The result is that although the plaintiff made out a strong case, it was contradicted by the evidence for the defendant, creating a case demanding determination by the jury. There was also some evidence of contributory negligence which was likewise a question to be decided by the jury. In cases of conflicting evidence, depending upon the credibility of the witnesses, the verdict of a properly instructed jury is conclusive, and this court is not authorized to interfere even though the majority of the witnesses and the weight of the evidence are with the losing party. Powell v. Galloway,
2. George F. Bauer, service manager for the defendant company, was introduced as a witness in its behalf. He did not see the accident, but testified respecting the damaged condition of the Buick car as a result of the collision. He was asked to state, from an inspection of the Buick car, what parts of any other car could have caused the injuries which it had sustained. He stated that judging by the location and character of the hole in the door it had to be something approximately the same height as the hole and it had to be something sharp in order to punch through the metal door. The only portion of an automobile that could punch such a hole in the door would be the fender arm on the colliding car. That is a sharp steel bracket that fastens the fender to the car. The witness was also asked to state as an expert whether he could tell from the appearance of the marks on the car at what angle the cars came together. His answer was that he could only judge that apparently the front end of the Chevrolet hit the door of the Buick. The witness was fully cross-examined as to the deductions he made from the physical facts and as to the possible parts of an automobile *Page 643
capable of producing the character of injury found on the car. There is no dispute that the physical facts were properly shown. The competency of Bauer's testimony in the particulars mentioned is questioned upon two grounds. It is first insisted that it is related to matters not properly the subject of expert evidence, and then that the deductions which he drew permitted the witness to usurp the functions of the jury. Certain cases are cited in support of the contention. In Interstate Coal Company v. Shelton,
3. The first complaint of the instructions is addressed to the matter of speed. There was positive testimony tending to show that the speed of the Buick car exceeded twenty miles an hour, although there was testimony to the contrary. The court told the jury that it was the duty of the driver of defendant's car at the time and place to operate the Buick at such a rate of speed, not exceeding twenty miles an hour, as it should believe from the evidence was reasonable and proper, considering the traffic upon the intersection at the time. The instruction imposed an absolute duty, under all circumstances, to keep the car within a speed limit of twenty miles per hour. The instruction was more favorable to the plaintiff than the instruction offered by it based on *Page 645
section 2739g-51, Ky. Statutes. The offered instruction was to the effect that a speed in excess of twenty miles an hour was merely prima facie evidence of unreasonable and improper driving, whereas the court by the instruction given made it the absolute duty of the driver not to exceed that limit. Obviously, therefore, the plaintiff could not complain of that instruction. Krieger v. Standard Printing Co.,
It results that no error prejudicial to the substantial rights of the appellant is apparent in the record.
The judgment is affirmed.