Malcom v. Kirk's Administratix , 318 S.W.2d 406 ( 1958 )

WADDILL, Commissioner.

Lloyd Kirk, a pedestrian, was fatally injured when he attempted to cross a public highway after dark. The automobile driven by Hubert Howell, which was traveling north at about SO miles an hour, struck Kirie in the north-bound traffic lane and knocked him into the south-bound traffic lane. While Kirk was lying there, the car driven by James Malcom, traveling south at approximately 40 miles an hour, ran over him.

Mary Kirk brought this action as admin-istratrix of Kirk’s estate to recover damages from Howell and Malcom alleging that their negligence caused Kirk’s death.

Upon trial of the case the jury returned the following verdict:

“We, the jury, believe that Mr. Kirk, Mr. Malcom and Mr. Howell are all guilty of some neglect by not observing the traffic conditions at the time of the accident. Furthermore, that Mrs. Kirk should be paid $6000, plus funeral expenses, the same to be divided equally between the defendants, Mr. Howell and Mr. Malcom.”

After the verdict had been entered of record without objection, Malcom filed a motion requesting the court to enter a. judgment for defendants on the verdict. This motion was overruled, and the court entered judgment that plaintiff recover $3,168.19 from each of the defendants.

The appeal by James Malcom only questions the correctness of the judgment entered upon the verdict. Appellant insists, that the verdict absolves him from liability because the jury found that Kirk was guilty of negligence. Consequently, the sole question to be decided on this appeal is whether the court correctly construed the verdict in light of the record. Thacker’s Adm’r v. Salyers, Ky., 290 S.W.2d 830; Fritz v. Roberts, 264 Ky. 418, 94 S.W.2d 1016; Lykins v. Hamrick, 144 Ky. 80, 137 S.W. 852.

Apparently, the trial court construed the verdict to mean that, although Kirk was guilty of negligence, Malcom had the last clear chance to avoid running over him. This construction gives effect to all of the findings of the jury. Hence, the only reasonable conclusion that can be reached is that the jury decided the case under the instruction which authorized appellee to recover under the last clear chance doctrine.

Judgment affirmed.