Benton v. Parks' Adm'r
| Citation | 272 S.W.2d 466 |
| Parties | Evelyn BENTON et al., Appellants, v. Dillard PARKS' ADMINISTRATION (Dale Parks), Appellee. |
| Decision Date | 29 October 1954 |
| Court | United States State Supreme Court — District of Kentucky |
McCann, Sledd & McCann, Lexington, for appellants.
J. Douglas Graham, Campton, for appellee.
CULLEN, Commissioner.
Evelyn Benton, while driving an automobile owned by her brother, Edwin Benton, struck and killed Dillard Parks, a four-year-old boy. In an action for wrongful death, the boy's administrator recovered judgment for damages in the amount of $10,000 against Evelyn and her brother, and they have appealed.
The primary contention of the appellants is that they were entitled to a directed verdict, because there was no substantial evidence of negligence in the operation of the automobile.
The accident occurred around 11:00 a. m. on Sunday, March 1, 1953 in Wolfe County, on Kentucky Highway No. 15, which runs north and south. The Benton automobile was traveling towards the south. The day was clear and the sun was shining. The highway is straight for a distance of some 300 or 400 yards in each direction from the point of the accident. The highway runs along the side of a hill at this point, and on the west side of the highway there is a steep bank down to the bottom land some 25 feet below the level of the highway. Along the west side, extending for a distance of some 500 feet, there is a row of guard posts, about two and one-half or three feet tall. The guard posts stand three to three and one-half feet from the edge of the paved surface of the highway, the space between constituting the shoulder of the roadway. Opposite a house on the east side of the road there is a path leading down the bank to the bottom land below the road on the west side. The Parks boy was struck at a point on the west side of the highway, about two feet from the edge of the pavement, and about 30 feet south of the entrance to the path.
On the morning of the accident, the Parks family had come to visit a Smith family, who lived in the house on the east side of the highway above mentioned. About one hour before the accident, Mrs. Parks took her four children and some of the Smith children, all of tender age, across the highway and down the path to the bottom to play. She then left them and returned to the house. None of the other children, and none of the people in the house, saw the automobile strike the Parks boy, and none of them could testify as to where the boy was immediately before the accident.
The Benton car was traveling towards the south, in the west traffic lane. There were three young people in the car besides Evelyn Benton, the driver; one in the right front seat and the other two in the back seat. Evelyn testified that she was looking at the road ahead but did not see the Parks child as she approached the point of the accident; that just as the car hit the child she 'saw a little object' which was 'moving in pretty fast.' She further testified that it was impossible to see the child before he was hit.
Withrow Morris, who was riding in the right front seat, testified that he was watching the road ahead and the adjoining area; he saw some children playing in the bottom some 150 yards from the highway, but he did not see any child coming up the path; just at the moment of the accident he 'saw a glimpse of something and my first impression was that a child over the bank had thrown a stick or ball up and hit the car;' he didn't know it was a child the car had hit; if the child had been along the highway as the car approached he would have seen it; the child 'wasn't standing there' because 'I would have seen it if it had been there.'
Bonnie Morris, who was riding in the left rear seat, saw the children playing 'over in the field,' but she did not see the Parks...
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Morrow v. City of Harlan
...not, and liability cannot be placed on conjecture or speculation. City of Ludlow v. Albers, 253 Ky. 525, 69 S.W.2d 1051; Benton v. Parks' Adm'r, Ky., 272 S.W.2d 466. There was too great an opportunity for a third party's independent and intervening culpable act for the law to pin liability ......
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Potts v. Krey
...of a pedestrian because any appearance is sudden to such a motorist. The situation here is different from that in Benton v. Parks' Administrator, Ky., 272 S.W.2d 466, where the physical conditions along the side of the highway were such that it was just as likely that the child was conceale......
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...child may suddenly dart into the street and he must be prepared for that contingency. Potts v. Krey, Ky., 362 S.W.2d 726; Benton v. Parks' Adm'r, Ky., 272 S.W.2d 466; Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897. * * See also George v. Evans, Ky., 405 S.W.2d 285 (1966); Modern Bakery, I......
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