Cook v. Gillespie
| Decision Date | 22 March 1935 |
| Citation | 259 Ky. 281 |
| Parties | Cook v. Gillespie. |
| Court | United States State Supreme Court — District of Kentucky |
6. Appeal and Error. — Ordinarily, in action against two alleged tort-feasors, jury's finding regarding proximate cause, where evidence of negligence is conflicting, will not be disturbed on appeal; rule being otherwise where incorrect instructions may have misled jury.
7. Automobiles. — Statute governs operation of motor vehicles at interesections and applies to those the previous paths of which have been parallel as well as where previous paths were at right angles to each other (Ky. Stats., sec. 2739-37).
8. Automobiles. — Where motorist attempting to pass truck from rear grazed wheel of truck making left turn from highway into road forming T-shaped intersection with highway, action by motorist's guest held governed by statute pertaining to intersections, under which truck driver, having first entered intersection, had right of way (Ky. Stats., sec. 2739g-50; Ky. Stats. Supp. 1933, sec. 2739g-37).
9. Trial. — Instruction which began by telling jury to find for plaintiff against either or both of defendants, and to award her certain damages, held in effect peremptory instruction, and hence was erroneous as to defendant whose negligence was issue for jury on sharply conflicting evidence.
Appeal from Kenton Circuit Court.
ROGERS & ROGERS for appellant.
NORTHCUTT & NORTHCUTT for appellee.
Reversing.
A suit begun by Miranda Gillespie against Leonard Cook and Allie Baldwin to recover $5,260 for injuries received by her in an automobile collision resulted in the following judgment entered upon a verdict signed by ten jurors:
"It is adjudged that the plaintiff, Miranda Gillespie, recover of the defendants, Leonard Cook and Allie Baldwin, jointly, the sum of five hundred ($500.00) dollars — from Leonard Cook the sum of three hundred ($300.00) dollars and from Allie Baldwin the sum of two hundred ($200.00) dollars, and her costs herein expended."
Cook's motion for a new trial having been overruled, he appeals.
This accident occurred about 5:30 p.m., August 20, 1932, on the Dixie highway about one-half mile north of the village of Richwood and at the entrance of the Frogtown road, which there enters the Dixie highway from the west and forms a T-shaped intersection with it.
Cook in his truck had been traveling north on the Dixie highway and was turning to the left into this Frogtown road when the collision occurred. Baldwin was also traveling north on the Dixie highway, but on the left or west side thereof, and was endeavoring to pass Cook's truck when the left front wheel of the truck was brushed by one of the right fenders of Baldwin's coupe which caused the coupe to leave the road to run over some logs into a Coca-Cola sign, into a fence, and finally when about eighty feet from this intersection to strike against and break off a fifteen-inch telephone pole by which the coupe was wrecked.
Mrs. Gillespie was a guest in the Baldwin coupe, and in the wreck was seriously injured.
Duties of these Men.
Where a statute imposes upon the operator of a motor vehicle duties relative to turning, stopping, or changing the course of such vehicle and giving signals therefor, there falls upon the operators of trailing and oncoming vehicles the duty to watch for and observe such signals, to give due regard to them, and to keep their trailing or oncoming vehicles under such control as to avoid colliding with the vehicle, from which the signals were given, while it is turning, stopping, or changing its course as indicated. Wright v. Clausen, 253 Ky. 498, 69 S.W. (2d) 1062; 42 C.J. p. 949, sec. 671, note 69.
The operator of the trailing vehicle must remember the man ahead is engaged in handling a high-power, dangerous machine, requiring constant attention and quick action, and that his outlook is ahead and not behind. Wright v. Clausen, 253 Ky. 498, 69 S.W. (2d) 1062; Government Street Lumber Co. v. Ollinger, 18 Ala. App. 518, 94 So. 177.
Cook was driving a half-ton Ford truck. No one says he was traveling over 15 or 20 miles per hour, and it is not disputed that he was traveling still slower as he made this turn. His truck was equipped with a rearview mirror. Seven witnesses say he gave a signal of his intention to turn by holding his left hand straight out. No one testifies that he turned and looked back. Of course he could have got a view of the traffic behind him by looking in his mirror, but no one says whether he did or not. Mrs. Gillespie cannot rely on Cook's failure to look unless she has some evidence he failed to look. She has none.
Mrs. Gillespie must look for Cook's negligence in some violation of the statutes, for back in the days of horse-drawn vehicles the rights of the man on his right side of the road were superior to the rights of the man on his left side of the road, and the rights of the man in front were superior to those of the man behind, the overtaking vehicle had to use proper caution in passing and watch for oncoming vehicles (29 C.J. p. 654, sec. 419), and the man in front could turn across the road, and he need not under all circumstances look behind him or sideways before crossing the street, or necessarily anticipate that a team is behind, or give a signal. See 29 C.J. p. 655, sec. 420. In 1836 in Payne v. Smith, 4 Dana (34 Ky.) 497, Smith's gig...
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