Chittum v. Abell

• Decision Date: 12 May 1972
• Citation: 485 S.W.2d 231
• Parties: Joe L. CHITTUM, etc. et al., Appellants, v. Edward C. ABELL, Jr., et al., Appellees. Edward C. ABELL, Jr., et al., Appellants, v. GREER BROTHERS & YOUNG, INC., Appellees. Joe L. CHITTUM, Individually, etc., et al., etc., Appellants, v. MOORE & CHITTUM, INC., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 231

485 S.W.2d 231

Joe L. CHITTUM, etc. et al., Appellants, v. Edward C. ABELL, Jr., et al., Appellees.

Edward C. ABELL, Jr., et al., Appellants, v. GREER BROTHERS & YOUNG, INC., Appellees.

Joe L. CHITTUM, Individually, etc., et al., etc., Appellants, v. MOORE & CHITTUM, INC., Appellee.

Court of Appeals of Kentucky.

May 12, 1972.

Rehearing Denied Oct. 20, 1972.

Patterson & Berger, Logan E. Patterson, Pineville, Stiles & Miller, Robert R. Miller, Louisville, for appellant, Joseph L. Chittum, Individually, and as Executor of the Estate of Mary Ruth Chittum.

William A. Miller, Louisville, for appellant and also appellee, Moore & Chittum, Inc.

Woodward, Hobson & Fulton, Kenneth L. Anderson, Louisville, Grant F. Knuckles, Pineville, David C. Pottinger, Louisville, for appellees, Edward C. Abell, Jr., Roberta Abell and Merritt R. Millett.

Charles G. Cole, Barbourville, for appellee, Greer Brothers & Young, inc.

CULLEN, Commissioner.

We have three appeals arising out of two summary judgments (determined and recited by the trial court to be final in accordance with CR 54.02) in litigation growing out of an automobile accident. An automobile driven by Mary Ruth Chittum somehow got on the wrong side of a two-lane road and collided head-on with an automobile occupied by owner-passenger Merritt R. Millett and by employe-driver Edward C. Abell, Jr. Mrs. Chittum was killed and Millett and Abell were seriously injured. In the litigation that grew out of the accident, in addition to claims that each of the drivers was negligent, there was a claim that a highway contractor's negligence, in failing to post proper warnings of construction work in the area, was responsible for Mrs. Chittum's being on the wrong side of the road. There also was a claim that a corporation of which Mrs. Chittum was an officer was liable for her negligence. The net effect of the two summary judgments here on appeal was that Millett and Abell (and Abell's wife on a consortium claim) were held entitled to recover damages against Mrs. Chittum's estate and the corporation of which she was an officer (the amount of damages to be determined subsequently by a jury trial); and the corporation was held entitled to indemnity against Mrs. Chittum's estate for such of the damages as it might be compelled to pay, and for its attorney fees in defending the action.

Mrs. Chittum's executor, and her surviving husband, who had asserted a damage claim of his own, have appealed, maintaining that the granting of summary judgment on the basic issues of liability was improper because there were genuine issues of fact on all aspects of liability. Specifically, the executor and husband complain of the adjudications that (1) the highway contractor was not liable for their damages; (2) the highway contractor was not liable, solely, primarily or jointly, for the damages claimed by Millett and the Abells, and thus was not liable to the Chittum estate by way of indemnity or contribution as to those damages; (3) Mrs. Chittum was negligent and Abell was not contributorily negligent, so that the Chittum estate was liable for damages to Millett and the Abells; and (4) the Moore & Chittum corporation, of which Mrs. Chittum was an officer, was responsible for her negligence and thus was liable to Millett and the Abells for their damages. The executor complains further of the adjudication (by the second of the two summary judgments entered below) that the Chittum estate must indemnify the Moore & Chittum corporation to the extent of its liability to Millett and the Abells, and for its attorney fees in this action.

The Moore & Chittum corporation also has appealed, asserting that there was a genuine issue of fact as to whether Mrs. Chittum, in making the trip in the course of which the accident occurred, was acting as agent for the corporation, wherefore it was improper to enter summary judgment holding the corporation liable for Mrs. Chittum's negligence. The corporation further argues the impropriety of summary judgment on the issue of liability of the Chittum estate to Millett and the Abells.

Millett and the Abells have taken a 'protective' appeal from the adjudication that the highway contractor was not liable to them, but they seek a reversal on their appeal only if the judgment is reversed on the other appeals as to the determination of basic liabilities.

A summary of the facts of the accident is in order. The circumstances, fully developed on motion for summary judgment, are not substantially in dispute, and it does not appear that any material additional proof might be presented on a trial.

The accident occurred on U.S. Highway 25E a short distance south of Pineville, Kentucky. At the point of the accident the highway had only two lanes, one for northbound traffic and one for southbound. The accident took place in a curve, and along the center of the highway, beginning 150 to 200 feet north of the point of the collision and extending a considerable distance south of that point, there were freshly painted double yellow lines indicating a prohibition against passing. Mrs. Chittum was going south and the Millett-Abell car was going north. As hereinbefore stated, the cars collided in the northbound lane, Mrs. Chittum's car having gotton completely on the wrong side of the road. Mrs. Chittum was killed and thus her story was not available. Abell was unable to remember any of the circumstances of the accident. Millett was able to give only a few details. His testimony was that he had been doing some paperwork, writing on a pad in his lap with his head down, as they approached the scene of the accident. He suddenly noticed Abell stiffen up. He immediately looked up and saw the Chittum car headed toward them in their traffic lane, 100 to 125 feet away. He had no recollection of whether Abell swerved the car, applied the brakes, or did anything to avert the accident before the collision. However, the positions of the cars after the accident indicated that Abell had turned partly off onto the shoulder before the impact. Millett said that his car was going about 40 miles per hour. He made no estimate as to the speed of the Chittum car, but after the accident the speedometer of that car was found to be stuck on either 55 or 60 miles per hour.

At this point in the discussion, we deem it appropriate to dispose of the contention, by the appellant Chittum interests, that there was a triable issue of fact as to contributory negligence of Abell (imputable to Millett as his employer). We think it is plain that if Mrs. Chittum did not cross over to the wrong side of the road until she was within 100 to 125 feet of the Abell-Millett car, when Millett first saw her and when he noticed Abell 'stiffen up,' Abell had no chance to avoid the collision, because even if each vehicle was going only 40 miles per hour, they were destined to meet in one bare second. And there is nothing to furnish the basis for an inference that the Chittum car was on the wrong side of the road any appreciable time or distance before Millett saw it, because there are no circumstances indicating the probability of that fact. We conclude, therefore, that summary judgment was proper on the question of Abell's contributory negligence.

The other issues in the case require a further statement of facts.

At the time of the accident, work was in progress to convert U.S. Highway 25E into a four-lane divided highway. The accident happened around 1700 feet south of a railroad crossing. For a considerable distance north of this crossing the work had been completed and the four lanes were in use, so Mrs. Chittum, traveling south, had traversed that section of the highway. South of the railroad crossing the old two-lane highway was designed to become the southbound lanes of the divided highway, and new northbound lanes were under construction to the east, with a 15-foot median. Construction on the new northbound lanes was near completion, and the pavement had been laid, but the lanes were not quite ready for traffic. Therefore, immediately sough of the railroad crossing, the new northbound lanes were blocked off; traffic going south was diverted from two lanes into one, and northbound traffic was directed to cross over from its one-lane path to the two northbound lanes extending north from the railroad crossing.

While there was some negative evidence in the form of statements by some witnesses that they did not see any of the signs, or did not see certain of them, the record establishes with reasonable certainty that there were the signs hereinafter mentioned in or along the highway to indicate to sothbound travelers that the highway sough of the railroad crossing was being converted from a four-lane divided highway to one with two lanes and two-way traffic. ¹ There were three signs on the west shoulder, facing southbound traffic, indicating that there was highway construction ahead; these signs were located, respectively, 1,500 feet, 1,000 feet and 500 feet north of the railroad crossing. At the crossing there were four sawhorses staggered from the left edge of the left southbound lane of the four-lane highway out across that lane. The first bore a large arrow pointing to the right; the second and third each bore reflectors and striped lines; and the fourth carried the words 'DO NOT PASS' in...