Hardware M. C. Co. v. Union Trans. & Storage Co.

• Citation: 205 Ky. 651
• Parties: Hardware Mutual Casualty Company, et al. v. Union Transfer & Storage Company.
• Decision Date: 21 November 1924
• Court: Kentucky Court of Appeals

Page 651

205 Ky. 651

Hardware Mutual Casualty Company, et al. v. Union Transfer & Storage Company.

Court of Appeals of Kentucky.

Decided November 21, 1924.

Appeal from Franklin Circuit Court.

HOBSON & HOBSON for appellant.

H. L. MEANS, J. WOODFORD HOWARD, and O'REAR, FOWLER & WALLACE for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER — Reversing.

The appellant here was the plaintiff below, and at the conclusion of its evidence, the court peremptorily instructed the jury to return a verdict for the appellee. This litigation grew out of a collision which took place on the night of June 19, 1923, on the Versailles pike, just outside the city limits of Frankfort in Franklin county, Kentucky.

The appellee, Union Storage and Transfer Company, was delivering goods of some character to one Lonnie Gardner, whose property is situated immediately upon the north side of the Versailles pike. One of appellee's trucks was backed up to the front porch of Gardner, and two other trucks were parked on the roadside. All of these were motor trucks. This is another case where the witnesses in giving their testimony constantly refer to a plat drawn on the court room floor, which perhaps was of great assistance to the jury, but as it was not copied into the record, it has proved very confusing to this court. As best we can gather from the record, the truck referred to as No. 1, was the one that was backed up to Gardner's premises, and from which the goods were being unloaded. It was crosswise of the road.

The truck referred to as No. 2 was east of truck No. 1, or in the direction of Versailles from truck No. 1, and appears also to have been crosswise of the road, or nearly so, but instead of the front of this truck protruding into the road, the rear of it was out in the road, and the front was over on the north side of the highway. Truck No. 3 was still farther to the east than truck No. 2, and was parked on the north side of the road and was parallel with the road. There were no lights burning on these trucks.

This Gardner property is situated in a valley or depression and these trucks, standing in this valley or depression, were concealed from the view of one approaching from the direction of Versailles, by a hilltop.

John R. Sower was using this Versailles pike, returning from Lexington between twelve and one o'clock at night, in a Cadillac sedan. As he came over this hilltop, he saw immediately in front of him truck No. 3, and he succeeded in so turning his car as to avoid collision with that truck, but struck some of the furniture or whatever it was that truck No. 2 was loaded with, and his car was damaged by the collision.

He was carrying a policy of collision insurance, with the appellant, and after Sower had his car repaired, appellant paid the bill, and then instituted this action against Sower and the appellee, alleging in its petition the issual of the policy of insurance, the occurrence of the collision, and negligence of the appellee, and its payment of the damages resulting, setting up also its policy of insurance and the following provision thereof:

"If the company shall claim that the loss or damage was caused by the act or neglect of any person or corporation, private or municipal, the company shall on payment of the loss be subrogated to the extent of such payment to all right of recovery by the assured for the loss resulting therefrom and such right shall be assigned to the company by the assured on receiving such payment."

It asked that Sower be required to file his policy as a part of the record and that it be permitted to recover from the appellee the $463.50 which Sower had paid to have the car repaired and which it, under its policy of insurance, had paid to Sower.

At the point where this collision occurred, the pike is about 30 feet wide. As Sower approached Frankfort he was traveling the right-hand side of this pike, and it was on this, the north, or right-hand side of the pike, that these trucks were parked.

No error is complained of on this appeal, except the action of the court in directing the jury to find a verdict for the appellee, and four reasons are given to support the action of the court in giving this instruction.

First, the appellant failed to show the value of the car just before the collision and just after the collision. All appellant showed was that it had expended $463.50 for the repair of the car.

In the case of Robson v. Zumstein Taxi Cab Co., 198 Ky. 365, 248 S. W. 872, this court said: "Although the measure of damages was the difference in the market value of the taxi before and after the injury, and no witness testified as to its market value on either occasion, yet as it was clearly shown that the machine was injured and certain parts had to be restored, and that these parts cost something, it cannot be doubted that the evidence was sufficient to authorize a finding of nominal damages, and that being true, appellant was not entitled to a peremptory on the ground that no damage was shown." That is conclusive of the first reason given to sustain the action of the lower court.

The next reason given for sustaining the action of the court in giving this peremptory instruction is that no negligence of the appellee had been proved. The proof shows that they had no lights on these trucks. No. 2, including the furniture with which it was loaded, stuck out into and occupied about one-half of the highway, and this brings us to a consideration of whether or not it was negligence to leave this loaded truck on the highway without a light. By section 2739g-24, these trucks were required to have a red light in the rear and to have two lights in front when in operation. It is insisted that these trucks, when parked upon the roadside, were not in operation within the meaning of the statute. They were loaded with furniture or other property which the appellee had transported for Gardner, and these trucks were then parked at this point for the purpose of being unloaded, and while so being used, they were "in operation" within the meaning of the statute.

That this was the intention of the legislature is clearly shown from subsection three of section 2739g-24, because in this subsection the legislature provided that: "Cities or towns may by ordinance designate certain well lighted streets or parts thereof during certain periods, as being sufficiently illuminated to make lights on parked automobiles unnecessary,...