Hall v. Kolb
| Decision Date | 24 January 1964 |
| Citation | 374 S.W.2d 854 |
| Parties | Ray T. HALL et al., Appellants, v. Henry KOLB et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Waller, Threlkeld, Whitlow & Byrd, Williams & Rivers, Paducah, for appellants.
John B. Blackburn, Holland G. Bryan, Wheeler & Marshall, Paducah, for appellees.
This is a negligence action arising out of a collision between two automobiles on the concrete slab of a new road being constructed by the appellee, J. B. Michaels & Company, Inc. (hereinafter called Michaels), under a contract with the state. The road had not been completed, accepted, marked or designated as a highway and was not officially open for use by the general public, but the barrier at its entrance was so constructed and placed that a driver could easily enter upon it from U.S. 62. That is just what the appellant Gary Dale Roberts did. So also, shortly before, had the driver of a large tractor-trailer outfit. Roberts overtook this truck and, in passing it on the left, struck a car driven by the appellee Kolb, a rural mail carrier, who was crossing the concrete slab from Roberts's right to left on an intersecting county road. There were no signs or markers to indicate the presence of the intersection.
Roberts was driving an automobile owned by his father-in-law, the appellant Hall, and was accompanied by his wife. The Robertses sued Kolb and Michaels for personal injuries. Kolb counterclaimed against Roberts, cross-claimed against Michaels and, in substance, asserted a thirdparty complaint against Hall for personal injuries. Hall then asserted a claim against Kolb and Michaels for damages to his automobile. In addition to various defensive pleadings, all parties cross-claimed over for contribution.
At the conclusion of the evidence the trial court held Roberts guilty of negligence as a matter of law and submitted the alleged negligence of Kolb and of Michaels to the jury, instructing it to consider the accident as having occurred at an ordinary road intersection, with neither the county road nor the newly constructed concrete strip having preference over the other. The jury found in favor of both Kolb and Michaels and awarded Kolb damages in the sum of $46,847 against Roberts alone.
Though Hall and Mrs. Roberts are named with Roberts as appellants, the argument as briefed in this court is directed exclusively to the judgment on Kolb's counterclaim against Roberts and on Roberts's cross-claim against Michaels for contribution. Thus all other issues are waived, 1 which eliminates Hall and Mrs. Roberts. Likewise, no question is raised with respect to Roberts's negligence and the theory upon which the trial court held him negligent as a matter of law. 2
It is first suggested that Kolb, in attempting to cross the concrete strip (which for the sake of convenience we shall occasionally call the 'new road'), was contributorily negligent as a matter of law in that he failed to see the obvious. Cf. Vaughn v. Jones, Ky., 257 S.W.2d 583 (1953). But we think this was a jury question. Until he arrived within 30 feet of the new road Kolb's vision was obstructed by a bank through which the county road was cut. When he emerged into the clear, he saw the large truck approaching from his lfet and judged that he had time to get across ahead of it. Evidently, however, Roberts was then in the process of passing or beginning to pass to the left of the truck, so that the truck was moving along directly in what otherwise would have been the line of vision between Roberts and Kolb. Hence neither of them saw the other until it was too late. This is what the jury was entitled to and apparently did believe from the evidence, and on that premise we cannot say Kolb was negligent as a matter of law.
Roberts does not contend that the new road should not have been treated as a public highway within the purview of KRS Chapter 189. On the contrary, he takes the position that...
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Osborne v. Payne, No. 1999-SC-0616-DG.
...to argue before the Court of Appeals that summary judgment was improper as to the diocese is tantamount to a waiver. Cf. Hall v. Kolb, Ky., 374 S.W.2d 854 (1964). Any part of a judgment appealed from that is not briefed is affirmed as being confessed. Cf. Stansbury v. Smith, Ky., 424 S.W.2d......
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