Reversing.
The appellee, Miss Mary Ermine Edwards, recovered a judgment for $8,000 against both the appellants, Bowling Green-Hopkinsville Bus Company and the Southwestern Construction Company, for the loss of the sight of an eye and the expenses incurred incident thereto, due, as she alleged, to the joint and concurrent negligence of the defendants. Their consolidated appeals will be disposed of in one opinion.
The plaintiff was a passenger on the bus of the Bowling Green-Hopkinsville Bus Company from Russellville to Hopkinsville. It was passing a truck of the Southwestern Construction Company, traveling in the opposite direction, when the injury was sustained. Broken stone of small dimensions was being spread on the road by the highway department, and at the point of the accident there was a sheet of this loose rock several inches in thickness. It is reasonably apparent that one of these small stones was cast by one or the other of the vehicles through the open window of the bus and struck the plaintiff in the eye, but by which car it was thrown can only be surmised. She was in the front seat, next to the open window, on the left side of *Page 686 the bus, just back of the driver. The window in the door by which he sat was slanted toward the windshield and was also open. The accident occurred in August, 1930, when the weather was very warm. The plaintiff testified that the rock came through the window by the driver. The driver's evidence is that he knew nothing of the stone coming into the bus, but he heard Miss Edwards scream and say something had hit her. No rock was found inside of the bus. Quite naturally the exact relative positions of the two vehicles at the time was not shown, but it is shown that they were in the act of passing each other. Travel was restricted over the highway at this place in order to avoid interference with the workmen, but the bus was given special permission to use it, and the truck was engaged in hauling pipe for a gas line being built near and in the highway. It is thus shown that both vehicles were where they had the right to be. Several witnesses testified that it is a usual or common occurrence for automobiles traveling through such loose rock to throw them out from under the wheels with considerable force. Sometimes they are thrown to the side, sometimes to the front, and sometimes to the back. No one testified that it was a common thing for the gravel or stones to be thrown upwards from beneath the fenders into the machine which was passing over them.
There are a number of reasons advanced by the appellants for a reversal of the judgment, but it does not seem necessary to decide but one.
Appellants suggest some doubt about the accident having been caused by a flying rock. Aside from the positive statement of the plaintiff, we think the reasonable inference gathered from all the evidence is that such was the cause. But it seems to have been impossible to show whether that rock was thrown by the wheels of the bus or the wheels of the truck. Whether impossible or not, as a matter of fact it was not shown. The question is presented whether the casting of the rock was through actionable negligence; and that would seem to rest upon whether the throwing of the stone and an injury should have been reasonably anticipated or foreseen as a natural and probable consequence. Gosney v. L. N. Railroad Company,
It is said in Kennedy v. Maryland Casualty Company (D.C.)
There are two cases relating to the liability of a passing automobile in this way.
In Burkes v. Lieberman,
In the case of Teche Lines v. Bateman,
"It is well known that cars proceeding at a high rate of speed on gravel roads throw gravel by reason of the force of the car striking the gravel, or by reason of the suction of the car; and it is well known that such flying gravel or small rocks are calculated to inflict injury. The greater the rate of the speed the more violent the hurling of such gravel or rocks becomes. It may be safely assumed that a person traveling the highway assumes the risk incident to travel in a reasonable and lawful manner, but when a person exceeds the speed limit allowed by law and as a result of such excessive speed injury is inflicted upon another using the highway, such party is liable for the injury occasioned thereby. Every person driving a motor vehicle upon public highways is under duty to every other person traveling such highway to exercise reasonable care and caution to prevent injury and to operate the motor vehicles in accordance with statutes prescribing the rights and duties of persons upon such highways."
A judgment for $12,000 for the plaintiff was affirmed, conditioned upon a remittitur of $5,000 because of excessiveness.
In the light of these authorities, we may proceed upon the view that to knowingly run through loose rock at a rapid speed under circumstances such as here disclosed constitutes negligence. We turn to the question whether the carrier was negligent in not having protected the passenger from the peril of flying stones. *Page 689
To determine this, we need only to refer to the recent case of Stephenson v. Smith Motor Coach Company,
"Thus we have a case where the break was caused by a stone, which, whether thrown from the wheels of the trailer or not, came from the outside through no fault whatever on the part of the coach Company. It not being claimed that the glass was defective or was insecurely fastened, and there being nothing in the evidence connecting the accident with the movement of the bus, it follows that the court did not err in sustaining appellee's motion for a peremptory instruction."
See, also, Shearman Redfield on Negligence, sec. 516.
That opinion settled the point in this case in favor of the bus company as to its liability for the rock if it was thrown by the passing truck for it was not dangerous to have had the windows of the bus open under the prevailing weather conditions, unless peril or injury therefrom might have been reasonably anticipated under the circumstances.
Reverting to the issue of negligence as it pertains to the throwing of the rock: The matter of speed is the controlling factor here; and it seems to the court that the evidence of unreasonable speed on the part of the vehicles was not sufficient to take the case to the jury. Miss Edwards testified that the bus was going *Page 690 "extremely fast," from 45 to 50 miles an hour, and the truck at "some similar speed," as they approached one another. Just before this she was talking with her companion on the same seat of the bus and at the same time was trying to attract the attention of a friend on the other side of the road. For a moment or two she was looking back. She testified:
"I turned and facing the front and as I did that I noticed the truck right on the bus and just as I saw the truck there was a white missile came; a rock came in the window and struck me in the eye."
She also stated when she noticed it the cars were "very close together, not more than ten or fifteen feet," and "they might possibly not have been that far; it was very hard to estimate distances right there." Again the plaintiff testified, when asked with reference to the relative positions of the vehicles:
"That is very hard to say because I was not interested in the truck until after I was hit. I merely noticed it as being a passing vehicle, but they were passing each other at the time when I first saw the rock."
Pursuing the subject further, we quote questions and answers:
"Q. Miss Mary Ermine, how far ahead of where the truck passed you was it that you saw the truck approaching? A. I did not see it until it was right on us. As I turned around I just got a glimpse of it enough to say that it was a truck.
"Q. And your idea as to the speed at which it was traveling was passed on the moment of it passing the bus? A. Yes."
Some of her other testimony emphasized this lack of attention to the approaching truck. Miss Edwards' companion testified that she paid no attention to the speed of the bus or movement of the truck.
While we may disregard for the purpose of the opinion the evidence of the defense upon this point, it may be said that the driver of the truck testified that it was going about 15 miles an hour and could not possibly have gone faster than 35 miles because of a governor which controlled the speed. It was heavily loaded with iron pipe. The driver of the bus testified that it *Page 691 was traveling between 20 and 25 miles an hour in second gear and the truck was not running very fast because it had slowed down for a bad place which it had gone through.
It is uniformly regarded that the rate of speed at which an automobile is running is not a matter exclusively for expert testimony, and that a person of ordinary intelligence, having some knowledge as to the speed of automobiles generally, and actually witnessing the running of the machine, or deriving knowledge from the exercise of his own senses as to the speed, at or near the time of the injury caused by its operation, may testify to such speed as to a fact; the testimony being received and appraised according to the means of the observer and the standards he has used, the basis being tested by cross-examination. Wilder v. Cadle,
There was no evidence other than the plaintiff's supporting her claim of rapidity of operation of the two machines. The full recitation of her evidence we believe demonstrates that her testimony as to the speed of the cars was but a hazardous guess, for under the *Page 692 circumstances she could not have possibly known anything about it. The evidence was insufficient to take the case to the jury upon that point, which was essential to the maintenance of the cause of action. We are of the opinion, therefore, that the court should have directed a verdict for the defendants.
No other questions are considered or passed upon.
Whole court sitting, except Perry, J.