Duncan v. Wiseman Baking Co.

• Decision Date: 09 June 1961
• Citation: Duncan v. Wiseman Baking Co., 357 S.W.2d 694 (Ky. 1961)
• Parties: Stargle R. DUNCAN, Appellant, v. WISEMAN BAKING COMPANY, Inc., et al., Appellees.
• Court: Supreme Court of Kentucky

Page 694

357 S.W.2d 694

Stargle R. DUNCAN, Appellant, v. WISEMAN BAKING COMPANY, Inc., et al., Appellees.

Court of Appeals of Kentucky.

June 9, 1961.

As Modified on Denial of Rehearing June 22, 1962.

Damon A. Vaughn, Withers, Lisman & Withers, Dixon, for appellant.

Earle M. Nichols, Madisonville, William M. Deep, Henderson, for appellees.

STANLEY, Commissioner.

The plaintiff in an action for personal injuries and property damage sustained in an automobile accident brings an appeal from a judgment for the defendants, Wiseman Baking Company and its drivers, H. E. Raiford and James A. Murray. The major conditions and factors are not in dispute. A reversal of the judgment is sought upon claimed errors, (1) in omitting from the instruction on the duties of the defendants the duty to put out flares or other warning signals upon the highway, and (2) in the contributory negligence instruction by placing too great a duty upon the plaintiff when blinded by lights of another car. A third ground of error need not be considered.

The accident occurred after dark in January, 1958, on a two-lane highway in Webster County. A large tractor-trailer (overall length of 45 feet) of the Wiseman Baking Company of Rome, Georgia, and operated by its employee Raiford was stalled because of motor trouble. It was headed east on the south side of the highway and stopped about half on the paving and half on the shoulder. A passenger automobile driven by the company's employee, Murray, had gone ahead of the truck. He returned when he had become separated from the truck and stopped when he came upon it. The motor of the truck was tight by reason of recent repairs and its battery lacked enough power to start it; so Murray pulled up beside it in the center of the highway, headed west, for the purpose of connecting his car's battery by a cable or 'jump cord' with the truck's battery to give it increased power. Thus, the highway was completely blocked by the defendant's two vehicles, except that cars could squeeze through in the north lane. The accident occurred while the battery cable was being connected.

We summarize the testimony of the plaintiff, Stargle R. Duncan. He was traveling east, the same way the truck was headed. The road was straight but rolling. As he came over a low hill, Duncan was blinded by the headlights of the Murray car, and he dimmed his own but got no response. He thought the car was moving and sounded his horn, assuming that the Murray car would get back in its lane. But as he drew near he discovered it was standing still in the middle of the road and no one was in it. He started to drive off on the right shoulder or 'take the ditch.' When he got about ten feet from it, the truck loomed before him 'in a flash.' His car was then about halfway on the shoulder of the road. There were no lights on the truck. He discovered later that the reflectors were covered with mud. Duncan testified he could not tell what the obstruction was at the moment because he was blinded by the lights of the Murray car. He was going 15 or 20 mph and had skidded about 20 inches before the impact. There were no flares to warn travelers of the blocked highway. Upon citations by a state policeman of Raiford, the driver of the truck, for failing to put out such warning signals, and of Murray, the driver of the passenger car, for improper parking, both entered pleas of nolo contendere and each was fined $10 by the Webster Quarterly Court.

The defendants' evidence was that Duncan had come up fast and left skid marks 35 or 40 feet long rather than 20 inches, as he testified.

They testified that the parking lights on the rear of the trailer were in good order and burning and that there were a number of lights at the top and around the side and rear of the trailer; also, that Fincher, who was on the truck with the driver, Raiford, was standing back of the tractortrailer, flagging traffic with an electric lantern, and that the plaintiff, Duncan, could have seen the flare which had been placed one hundred yards east of and in front of the truck. A state policeman corroborated the plaintiff that there were no lights on the rear of the tractor-trailer when he arrived at the scene.

The defendants introduced evidence that the plaintiff had the odor of alcohol on his breath and an empty beer can and several unopened cans were in his car. He denied he had had a drink of beer or any other intoxicant before the accident.

I. We consider first the failure of the defendants to have put out flares on the highway.

The primary instruction defined the duties of the defendants Wiseman Baking Company and Raiford as being not to stop the truck on the traveled portion of the highway or leave it standing there unless the truck had become disabled in such manner and to such extent that it was impracticable to move the same while waiting repair or sufficient help to move it, and the 'further duty to leave displayed on the rear of said truck a red light visible from the rear five hundred feet away under ordinary atmospheric conditions.' This is in accord with KRS 189.450(1)(a). The court refused plaintiff's request to add the following provision to that instruction:

'If you shall believe that said truck and its lighting equipment were disabled, it was the duty of the driver of said truck to cause lighted flares, lanterns or other signals capable of continuously producing three warning lights, each visible for a distance of at least 500 feet in advance of the vehicle, one at a distance of approximately 100 feet to the rear of the vehicle and the third upon the roadway side of the vehicle.'

The statute, KRS 189.070(2), provides:

'Whenever any motor truck and its lighting equipment are disabled during the period when lighted lamps must be illuminated on vehicles and the truck cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the person in charge of the vehicle shall cause the flares, lanterns or other signals to be lighted and placed upon the highway, one at a distance of approximately one hundred feet in advance of the vehicle, one at a distance of approximately one hundred feet to the rear of the vehicle and the third upon the roadway side of the vehicle, except that if the vehicle is transporting flammables three red reflectors may be so placed in lieu of the other signals and no open burning flare shall be placed near the vehicle.'

Similar statutes of other states make the duty to put out flares absolute when a motor vehicle has been parked or stopped on the traveled portion of the highway at night-time. 60 C.J.S. Motor Vehicles § 335d. See Annotation, 67 A.L.R.2d. It is to be noted that our statute requires such action 'whenever any motor truck and its lighting equipment are disabled.' (Emphasis added.)

The rejection of the offered instruction on the duty of the defendants to 'cause flares, lanterns or other signals to be lighted and placed upon the highway' was doubtless because of absence of evidence that the lighting equipment of the vehicle was 'disabled.' It was admitted that the motor truck was disabled and could not be immediately removed from the main traveled portion of the highway.

We have heretofore construed the statute, KRS 189.070(2) literally, and said that an instruction on the duty declared therein was not required where the lights of the vehicle were not disabled, even though the truck was stalled because of mechanical difficulty. Basham's Adm'x v. Witt, 289 Ky. 639, 159 S.W.2d 990; Branch v. Whitaker, Ky., 294 S.W.2d 948. In other cases we have held it to be for the jury to determine whether the exigencies of the particular condition required the operator of the vehicle to use flares as emergency warnings. Harry Holder Motor Co. v. Davidson, Ky., 243 S.W.2d 926; Smith v. Collins, Ky., 277 S.W.2d 38; Branch v. Whitaker, supra, Ky., 294 S.W.2d 948. Some of these cases appear to have regarded slight evidence tending to show disablement of the lighting equipment as justifying the instruction.

Upon further and mature consideration, we are impelled to the view that our literal construction of the statute does not conform to its purpose or the legislative intent to promote highway safety and to protect the traveling public from the hazardous situation of a big motor vehicle stalled on the 'main traveled portion of a highway' in the nighttime by providing special and specific warning signals in addition to the lights displayed on the vehicle. These signals also give warning that the vehicle is stationary. Such literal interpretation of the statute permits the operator of a truck stalled because of mechanical disablement to switch off the lights and let it stay on the road in the dark, and yet be under no obligation to warn the traveling public with flares or similar signals just because the lighting equipment was not out of order. Vice versa, the truck could be left standing in a traffic lane even though it was not disabled if its lighting equipment was out of order, and the operator would be excused by the law. Our previous construction of the statute defies reconciliation with the obvious purpose of the statute. There should be a practical construction and application of its terms.

True, the Legislature used the connective word 'and.' But since the popular use of the words 'or' and 'and' is loose and frequently inaccurate, the courts may and should change 'and' to 'or,' and vice versa, whenever such conversion is required, inter alia, to effectuate the obvious intention of the Legislature and to accomplish the purpose or object of the statute. James v. United States F. & G. Co., 133 Ky. 299, 117 S.W. 406; Commonwealth v. Bartholomew, 265 Ky. 703, 97 S.W.2d 591; Asher v. Stacy, 299 Ky. 476, 185 S.W.2d 958; Sutherland, Statutory Construction, (3d ed.), Vol. 2, § 4923; 50 Am.Jur., Statutes, § 282. We think there is reasonable justification to regard 'and' as 'or' in the...