Gregory v. Paducah Midstream Service

• Decision Date: 25 March 1966
• Citation: 401 S.W.2d 40
• Court: Supreme Court of Kentucky
• Parties: John A. GREGORY, Jr., Ancillary Administrator of the Estate of Robert E. Hall, Sr., Appellant, v. PADUCAH MIDSTREAM SERVICE, Appellee.

Page 40

401 S.W.2d 40

John A. GREGORY, Jr., AncillaryAdministrator of the Estate of Robert E. Hall, Sr., Appellant, v.PADUCAH MIDSTREAM SERVICE, Appellee.

Court of Appeals of Kentucky.

March 25, 1966.

Charles A. Williams, Paducah, Dresbach, Crabbe, Newlon & Bilger, Columbus, Ohio, for appellant.

A. E. Boyd, Jr., Boyd & Boyd, Paducah, Robert O. Miller, Murray, for appellee.

WADDILL, Commissioner.

This action for wrongful death was brought by appellant, John A. Gregory, Jr., as ancillary administrator of the estate of Robert E. Hall, Sr., against appellee, Paducash Midstream Service, Inc., as lessee and operator of the tugboat Alice.The appellee moved for a directed verdict at the close of appellant's evidence on the grounds that (1) no negligence in the operation of the tug was shown, and (2) the evidence established the decedent was guilty of contributory negligence which was the proximate cause of his death.This motion was sustained and judgment entered accordingly.

Appellee was not entitled to a directed verdict unless the evidence construed most favorably for appellant was insufficient to sustain a verdict for him.Johnson v. Vaughn, Ky., 370 S.W.2d 591;Aubrey's Adm'x v. Kent, 292 Ky. 740, 167 S.W.2d 831.Ordinarily the question of whether an accident was caused solely by the defendant's negligence or was contributed to by the plaintiff should be left to the jury.Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789;Eichstadt v. Underwood, Ky., 337 S.W.2d 684.Only where but one reasonable conclusion can be drawn by fair minded men will the court decide the issue as a matter of law.Middleton v. Partin, Ky., 347 S.W.2d 75.

The evidence discloses that at about noon on a clear day in August, 1962Robert Hall, in the company of Robert May, was piloting a 17-foot pleasure craft, having a 75 horsepower outboard motor capable of propelling it 35 miles per hour, on Kentucky Lake.Hall was proceeding upstream on the lake in an area frequently by small boats when he sighted appellee's tugboat traveling downstream in the Tennessee River channel of the lake.The tug was moving about seven miles per hour and was pushing four empty barges which were arranged two abreast.Hall passed the tug on its right side, crossed in back of the tug and proceeded downstream along its left side.He continued traveling in a straight course until he was about 450 feet beyond the nearest barge when he turned his boat to the right and into the path of the oncoming tug.Suddenly the motor of Hall's boat ceased functioning and the boat stopped in front of the barges.Hall and May abandoned the boat before it was struck by the barges; May was rescued, but Hall drowned.(It later was discovered that the gasoline tank connected to the motor was empty).

The barges occupied an area approximately 70 390 feet in front of the tug and their highest sections were 13 feet above the water line.Only the pilot and a deck hand were on duty aboard the tug and they were stationed in the pilot house at the time of the accident.No one was aboard the barges.The pilot and deck hand testified that because their forward vision was obstructed by the barges for a distance of 1000--1200 feet they were unable to see Hall's boat after it passed the port side of the barges and were unaware of Hall's and May's dilemma until they were seen in the water alongside the tug.The pilot also testified that the tug would travel more than 150 feet, after stopping operations were begun, before their forward motion could be reversed.

Appellant contends that the failure to have a lookout posted on the barges constituted actionable negligence, and that Hall's act of crossing in front of the tug did not constitute contributory negligence as a matter of law.Appellant further contends that assuming Hall was contributorily negligent, it would not bar recovery since this action is governed by admiralty law.

The accident occurred on a navigable stream which is within the territorial limits of Kentucky.Although federal law does not provide a right of action for wrongful death in these circumstances, the instant action was maintainable under Kentucky's wrongful death statute, ...