Campbell v. McCoy
| Decision Date | 01 November 1957 |
| Citation | 306 S.W.2d 843 |
| Parties | Raymond CAMPBELL, Appellant, v. Lee McCOY et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Elbert Strong, Hazard, for appellant.
Duff Arnett, Hazard, for appellees.
This action was instituted by the appellant, Raymond Campbell, against the appellees, Lee McCoy and Ernest Miniard, to recover damages for injuries he sustained in a truck accident alleged to have resulted from their negligence. A prior action arising out of the same accident instituted by Miniard against McCoy, wherein Campbell testified for Miniard, resulted in a judgment in favor of Miniard. Campbell was a passenger in the truck which was driven by Miniard and owned by McCoy. This appeal is from a judgment on a directed verdict in favor of the appellees at the conclusion of the appellant's evidence.
The appellant urges reversal upon the grounds that (1) he was not a party to a former action and thus is not bound by res adjudicata; and (2) in the absence of a satisfactory explanation it was negligence per se on the part of the driver when the truck left the highway.
The accident occurred on Highway 80 when the truck being driven by Miniard at a speed of between 30 and 35 miles per hour around a slight curve left the highway, went over an embankment of some 150 feet and hit a tree. Both Campbell and Miniard were injured.
Campbell alleged that Miniard did not use due care while driving around the curve and that this, together with a defective steering and control mechanism on the truck which caused it to shimmy and which McCoy either knew of, or in the exercise of ordinary care should have known of, caused the accident. It is of at least passing interest to note from the briefs that counsel representing Campbell in this action represented Miniard in his case, and that, apparently, Campbell and Miniard have frequently visited the office of this counsel together.
The only evidence relating to any negligence on the part of Miniard was Campbell's statement that he was driving 30 to 35 miles per hour and '* * * it was a little fast to be on a curve.' There was no evidence indicating that Campbell cautioned Miniard about his driving on the day of the accident.
Miniard had been driving the truck, with Campbell as a passenger, over creek beds and generally rough territory for several weeks, but neither had noticed any defect in the truck's control mechanism prior to the shimmy on the curve which allegedly contributed to the accident. A former driver of the truck said on avowal that the truck had a shimmy one month to six weeks before the accident and that, although he had told McCoy of the defect, it had not been repaired when he ceased driving the truck. McCoy testified that he did not remember it if the former driver had told him of a defect in the truck. The trial court properly excluded the avowal because of the time element alone.
In response to the appellee's motion for a directed...
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