sudden appearance instruction in Kentucky

1945The appellee construes the instruction as not being that form, but nevertheless justifies the propriety of giving it by distinguishing the decision in Dixon v. Stringer, 277 Ky. 347 , 126 S. W. 2d 448 , in which we reviewed the practice of giving the so-called sudden appearance instruction and held that it has no place except in certain classes of cases.

1945The appellee construes the instruction as not being that form, but nevertheless justifies the propriety of giving it by distinguishing the decision in Dixon v. Stringer, 277 Ky. 347 , 126 S. W. 2d 448 , in which we reviewed the practice of giving the so-called sudden appearance instruction and held that it has no place except in certain classes of cases.

1931In the course of that opinion, it is said: “In the recent case of Hornek Brothers v. Strubel, 212 Ky. 631 , 279 S. W. 1087 , we had occasion to review all the authorities on the question, and there held that it was error to limit the sudden appearance defense to a case where the defendant was observing the duties prescribed by the court as to speed incumbent on him in the management and operation of his machine, and approved the form of instruction given in Lexington Railway Co. v. Vanladen’s Adm’r, 107 S. W. 740 , 32 Ky. Law Rep. 1047 , and in Louisville Railway Co. v. Gaar (Ky.), 112 S. W. 1

1931In the course of that opinion, it is said: “In the recent case of Hornek Brothers v. Strubel, 212 Ky. 631 , 279 S. W. 1087 , we had occasion to review all the authorities on the question, and there held that it was error to limit the sudden appearance defense to a case where the defendant was observing the duties prescribed by the court as to speed incumbent on him in the management and operation of his machine, and approved the form of instruction given in Lexington Railway Co. v. Vanladen’s Adm’r, 107 S. W. 740 , 32 Ky. Law Rep. 1047 , and in Louisville Railway Co. v. Gaar (Ky.), 112 S. W. 1

1948In support of this position appellant relies on Lehman et al. v. Patterson, 298 Ky. 360 , 182 S. W. 2d 897, 899 , wherein we said: “Upon testifying that she did not see the child until he stepped into the street, Mrs. Lehman was asked if she was looking on the sidewalk and she replied, ‘I was looking straight ahead where I think you should look. * * * I was paying attention to traffic.

1948In support of this position appellant relies on Lehman et al. v. Patterson, 298 Ky. 360 , 182 S. W. 2d 897, 899 , wherein we said: “Upon testifying that she did not see the child until he stepped into the street, Mrs. Lehman was asked if she was looking on the sidewalk and she replied, ‘I was looking straight ahead where I think you should look. * * * I was paying attention to traffic.

1938See, also, the. case of Fork Ridge Bus Line v. Matthews, 248 Ky. 419 , 58 S. W. (2d) 615 , as to whether it is appropriate to give a sudden appearance instruction, as it was there contended by the bus driver should have been given, in which we sustained the driver’s contention, saying [page 616]: “It long has been the rule in this state that, where the injured person leaves a place of safety and steps, walks, or runs in front of an approaching vehicle so suddenly and so close to it that the driver, by the exercise of ordinary care with the means at hand, could not have avoided the accident if

1938See, also, the. case of Fork Ridge Bus Line v. Matthews, 248 Ky. 419 , 58 S. W. (2d) 615 , as to whether it is appropriate to give a sudden appearance instruction, as it was there contended by the bus driver should have been given, in which we sustained the driver’s contention, saying [page 616]: “It long has been the rule in this state that, where the injured person leaves a place of safety and steps, walks, or runs in front of an approaching vehicle so suddenly and so close to it that the driver, by the exercise of ordinary care with the means at hand, could not have avoided the accident if

1935Metts’ Adm’r v. Louisville Gas & Electric Co., supra; Ashland Sanitary Milk Co. v. Messersmith’s Adm’r, 236 Ky. 91 , 32 S. W. (2d) 727 .

1935Metts’ Adm’r v. Louisville Gas & Electric Co., supra; Ashland Sanitary Milk Co. v. Messersmith’s Adm’r, 236 Ky. 91 , 32 S. W. (2d) 727 .

1928The last point relied on by appellant for reversal is that the court should have given an instruction embodying the sudden appearance doctrine as defined in the case of Hornek Bros. v. Strubel, 212 Ky. 631 , 279 S. W. 1087; Knapp v. Gibbs, 211 Ky. 278 , 277 S. W. 259 ; Louisville Kailway Co. v. De Marsh, 203 Ky. 231 , 262 S. W. 13 .

1928The last point relied on by appellant for reversal is that the court should have given an instruction embodying the sudden appearance doctrine as defined in the case of Hornek Bros. v. Strubel, 212 Ky. 631 , 279 S. W. 1087; Knapp v. Gibbs, 211 Ky. 278 , 277 S. W. 259 ; Louisville Kailway Co. v. De Marsh, 203 Ky. 231 , 262 S. W. 13 .

1928The last point relied on by appellant for reversal is that the court should have given an instruction embodying the sudden appearance doctrine as defined in the case of Hornek Bros. v. Strubel, 212 Ky. 631 , 279 S. W. 1087; Knapp v. Gibbs, 211 Ky. 278 , 277 S. W. 259 ; Louisville Kailway Co. v. De Marsh, 203 Ky. 231 , 262 S. W. 13 .

1928The last point relied on by appellant for reversal is that the court should have given an instruction embodying the sudden appearance doctrine as defined in the case of Hornek Bros. v. Strubel, 212 Ky. 631 , 279 S. W. 1087; Knapp v. Gibbs, 211 Ky. 278 , 277 S. W. 259 ; Louisville Kailway Co. v. De Marsh, 203 Ky. 231 , 262 S. W. 13 .