Carruba v. Speno

• Decision Date: 12 May 1967
• Citation: 418 S.W.2d 398
• Parties: Norman CARRUBA, Appellant, v. Myrtle SPENO et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 398

418 S.W.2d 398

Norman CARRUBA, Appellant, v. Myrtle SPENO et al., Appellees.

Court of Appeals of Kentucky.

May 12, 1967.

As Modified on Denial of Rehearing Oct. 6, 1967.

William A. Rice, Harlan, William S. Tribell, Middlesboro, Charles E. Duncan, Louisville, for appellant.

Cawood Smith, Harlan, Farmer Helton, Robert R. R. Boone, Patterson & Berger, Pineville, for appellees.

STEINFELD, Judge.

From a judgment of $22,000.00 in favor of Myrtle Speno, Norman Carruba appeals and from the adjudication that the judgment should be credited by $9,000.00 which was paid in settlement by Veto Speno, through his insurance carrier, Myrtle Speno cross-appeals. The judgment was to compensate for the injuries Mrs. Speno received in an automobile accident.

On the 21st day of January, 1962, Myrtle Speno was a passenger in a Falcon automobile owned and driven by her husband, Veto Speno. They were proceeding eastwardly on U.S. Highway 119 in Bell County at a point between Pineville and Harlan. At the same time a 1948 Chevrolet moving van owned by Norman Carruba was being driven by Isom Woods, an employee of Carruba, in the same direction and along that same highway. Carruba was riding in the truck. The highway was a two-lane paved asphalt road and in the direction in which they were going, for at least .2 of a mile, it was generally straight with the grade gradually upward.

The Falcon overtook the truck and attempted to pass it. When the Falcon reached the rear of the truck the automobile was traveling about 28 or 29 miles per hour and Mr. Speno gradually increased its speed to about 45 miles per hour. As the Falcon attempted to pass the truck, Woods speeded up from approximately 28 or 29 miles per hour to 50 miles per hour. (There is some conflict in the testimony regarding the speed.) The efforts to pass the truck continued for about .2 of a mile and the Falcon managed to get about even with the cab of the truck so that Mrs. Speno could look directly to her right into the window of the left cab door of the truck. There is also conflicting testimony as to whether Mr. Speno sounded his horn on one or more occasions.

While Mr. Speno was trying to pass the truck Mrs. Speno saw an Oldsmobile automobile approaching in the opposite direction when it was about 1,500 feet ahead. Mr. Speno made no effort to stop or drop back for the reason, he said, that he thought he could get around the truck. Mrs. Speno says that the truck swerved and there was a collision between it and the Falcon (this is denied by Carrube) and almost simultaneously the Falcon collided with the Oldsmobile. She was severely and permanently injured to the extent that at the time of the trial she was confined to a wheel chair and the testimony showed that she would never be able to walk.

Mrs. Speno brought suit against her husband and Carruba. She alleged that there was separate and concurrent negligence on the part of the two drivers which resulted in the collision and the severe injuries which she sustained. She claimed $5,000.00 for medical expenses incured and to be incurred; $10,000.00 to reimburse her for nursing and assistance about her home and $35,000.00 for pain, suffering and the permanent loss of her power to earn money.

Carruba answered, and after denying any negligence on his part or the part of his driver, claimed that the accident was the proximate result of the sole carelessness and negligence of Mr. Speno.

Mr. Speno did not answer; however, Mrs. Speno moved that her action against Mr. Speno be dismissed because a settlement had been reached on her claim against him. She reserved her rights against Carruba. It was shown later that Mrs. Speno had received $9,000.00 from the insurance carrier of Mr. Speno in full settlement of her claim against her husband. The motion to dismiss as to Mr. Speno was sustained on February 1, 1963.

On May 10, 1963, Carruba filed a third-party complaint against Mr. Speno in which he claimed that the injuries which Mrs. Speno sustained were the proximate result of the carelessness and negligence of Mr. Speno. He demanded that if Mrs. Speno recovered against him that he '* * * recover of * * * Veto Speno, all, one-half or some other proportionate part of such damages as may be awarded * * *' Mrs. Speno. The court authorized that the third-party complaint be filed. CR 14.01. After appropriate pleadings raising all issues discussed in this opinion, including the claim that in the event Mrs. Speno was awarded judgment against Carruba he was entitled to have the judgment credited with and reduced to the extent of the $9,000.00 paid Mrs. Speno, the case proceeded to trial.

The jury awarded Mrs. Speno $22,000.00 '* * * against Norman Carruba, truck driver.' The court entered judgment for Mrs. Speno against Carruba for the $22,000.00; credited the award by $9,000.00 and authorized Mrs. Speno to have execution for the balance, $13,000.00. The court dismissed the third-part claim of Carruba against Mr. Speno. Motions made by Carruba for a new trial and for a judgment notwithstanding the verdict were overruled. Carruba appealed from the judgment against him and Mrs. Speno filed a cross appeal predicated upon the claim that $9,000.00 should not have been credited on the judgment.

Carruba relies upon United Coach Corporation v. Finley, 243 Ky. 658, 49 S.W.2d 544; Pedigo v. Osborne, 279 Ky. 85, 129 S.W.2d 996 and Ware v. Saufley, 194 Ky. 53, 237 S.W. 1060, 24 A.L.R. 500, to support his claim that the sole cause of the collision was the failure of Mr. Speno to drop back when it was apparent that the driver of the truck would not be overtaken and that Mr. Speno could not pass it in safety. Our attention is directed to 8 Am.Jur.2d page 338 which announces the rule that 'Upon the failure or refusal of the overtaken motorist to give way upon signal from the overtaking motorist of his desire to pass, the latter is not justified in persisting in his attempt to pass * * *'.

The United Coach case stands for the proposition that the driver of the car attempting to pass is negligent if he continues his efforts to pass when it would become '* * * reasonably apparent to a driver of ordinary prudence in his situation that the approaching car is so near, or is traveling at such a high rate of speed as to make it dangerous to continue the attempt, * * *'. Finding that situation it was said that '* * * he should slacken his speed and use ordinary care to get over on the right-hand side of the road and fall in behind the car in front.' The Osborne case was an action between the operators of cars going in the opposite direction and was reversed because of erroneous and prejudicial instructions. The opinion stated that Osborne was guilty of negligence in attempting to pass the automobile going in the same direction in which he was traveling; nevertheless, it was the duty of the approaching automobile to use ordinary care to discover Osborne's peril and to use the means at his hands to avoid the collision. Ware v. Saufley, supra, was an action in which it was alleged that the defendant, Ware, drove his automobile against the wheels of a buggy in which Saufley was riding. Plaintiff and defendant were both going in the same direction. The issue was whether Ware exercised reasonable care in attempting to pass the buggy. The cases cited by Carruba did not involve a claim by a passenger and are not authority in support of the contention that Mr. Speno was the sole cause of the collision.

Under instructions, not questioned on this appeal, the jury considered the sharp issue of whether the driver of the truck failed to perform the duties imposed on him and thereby was negligent. On the third-party claim there was submitted the issue of the negligence of Mr. Speno. (The appellant did not suggest upon the trial, nor has he argued here, that Speno violated the passing statute, KRS 189.340(3), and therefore should have been held negligent as a matter of law.) The jury found the truck driver negligent and Mr. Speno free of negligence. These were questions for the jury. Lever Bros. Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002; Acres v. Hall's Adm'r, Ky., 253 S.W.2d 373; Eichstadt v. Underwood Ky., 337 S.W.2d 684. The contention that Mr. Speno was the sole cause of the mishap is without merit.

Mrs. Speno claimed that Carruba's driver violated the duties required of him relative to the Falcon in its efforts to overtake him. Specifically, she claimed that there was failure to keep the truck under reasonable control as required by KRS 189.290; that he failed to give way to the Falcon which was a duty imposed on him by KRS 189.300(2) and that he completely ignored the requirement set forth in KRS 189.350(2). These statutes generally imposed upon the driver being passed the duty to exercise care for the passing vehicle and to assist it in getting by without mishap.

Carruba contends that his driver was not guilty of violating any statute or duty and that the acts of Mr. Speno were the proximate cause of the collision; that even if his driver was also at fault his blame was not a proximate cause. We agree with his statement that 'proximate cause is an essential element.' 7 Am.Jur.2d 916, section 369. There was conflicting testimony as to whether the driver of the truck knew or should have known of the efforts of the Falcon to pass and as to whether the truck driver failed to perform the duties imposed...