Indianapolis & Southeastern Trailways, Inc. v. Blankenship
| Decision Date | 14 March 1969 |
| Citation | 444 S.W.2d 267 |
| Parties | INDIANAPOLIS & SOUTHEASTERN TRAILWAYS, INC., and James D. Wallace, Appellants, v. Marie BLANKENSHIP and William Donald Queen, Appellees. INDIANAPOLIS & SOUTHEASTERN TRAILWAYS, INC., and James D. Wallace, Appellants, v. Marie BLANKENSHIP, Gdn. of Roger Lee Blankenship, and William Donald Queen, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Roy E. Tooms, Jr., Brown, Tomms & Helton, London, for appellants.
Robert L. Milby, Hamm, Taylor & Milby, London, F. Graham Bartlett, Knoxville, Tenn., for appellees.
Marie Blankenship and her 15-year-old son, Roger Lee Blankenship, were injured when the bus in which they were riding as fare-paying passengers collided with an automobile operated by William Donald Queen. Their suit against the two drivers and the bus company resulted in a verdict and judgment awarding Mrs. Blankenship $30,000 against Queen and $25,000 against the bus company and its driver and awarding Roger Lee Blankenship $1,000 against Queen and $1,000 against the bus company and its driver. Queen never answered, appeared or testified and does not appeal. The bus company and its driver appeal, contending they were entitled to a directed verdict or judgment n.o.v. and that the amount of the verdict in favor of Mrs. Blankenship was excessive.
The accident happened on U.S. Highway 25 about six miles south of London at about 2:30 A.M. on a clear, dry night in July of 1965. The bus was headed north and the Blankenships were on their way from La Follette, Tennessee, to Cincinnati. The road was an undivided two-lane pavement, one lane for traffic moving in each direction, and was straight for some distance both ways from the scene of the collision. There was no traffic in the immediate area except for the two vehicles involved.
Queen's negligence was the principal cause of the accident. The appellants contend it was the sole cause. The sufficiency of the evidence to support the jury's conclusion that the bus driver also was negligent must be weighed on the basis of the principle that a common carrier owes its passengers a higher degree of care than does the operator of a private vehicle. Adams v. Louisville Taxicab & Transfer Co., 307 Ky. 405, 211 S.W.2d 397, 399 (1948). The focus of the inquiry is provided by the Blankenships' contention that the evidence raised a permissible inference that the bus driver should have taken precautionary measures before he actually did.
The collision took place in the middle of the highway in front of the north extremity of a large area on the west side of the road known as Helton's Restaurant and Truck Stop. As the bus approached from the south a pickup truck in the service station area was pushing Queen's automobile in a northerly direction, parallel with the highway, in order to get it started. This effort was successful, and the car started. As it reached the end of the paved service station area it veered into the west lane of the highway, going north, then made a U-turn to the east shoulder of the highway, facing the oncoming bus, and cut back across the highway to get into the west or southbound lane. The bus driver, seeing Queen's automobile coming toward the bus on the wrong side of the road, turned the bus to the left, but apparently he did so at about the same moment Queen initiated his diagonal move toward the southbound lane, and the two vehicles met in the center of the highway.
We shall not summarize the defensive testimony. Suffice it to say that it conflicts with but does not conclusively refute the evidence adduced by the Blankenships. We may therefore look to the sufficiency of their evidence to support the verdict.
The critical evidence consists of the testimony of the Blankenships and of the bus driver, the latter taken by pretrial deposition as if under cross-examination (cf. CR 26.03, 43.06), and is as follows:
Mrs. Blankenship
Mrs. Blankenship was seated immediately behind the bus driver. She could not estimate the speed of the bus, but it 'was going fast.' Her attention to the road ahead was aroused by the exclamation of a fellow-passenger to the effect that a car was 'coming out of the wrong side of the road.' She looked at once and saw headlights 'coming right at us' at a distance of 'at least a city block.' The bus driver immediately sounded his horns, 'tapped the brake and just kept going.' She could not tell that the bus slowed down any. The bus driver 'swerved over into the left lane and just kept going,' and the crash followed. She did not know the exact position of the bus with respect to the traffic lanes at the moment of the impact.
For impeachment purposes the defendants introduced a statement taken by an investigator for the bus company and signed by Mrs. Blankenship in the hospital several days after the accident. It was in the handwriting of the investigator, and Mrs. Blankenship testified that she did not remember anything about making or signing it. It recited that the Queen car
Roger was sitting in a front seat across the aisle from his mother, next to the windown. The bus was two hours late, and he heard the bus driver tell someone at Corbin that they would be in Cincinnati on time. As the bus approached the scene of the accident it was going about 60 m.p.h. The witness could not see the speedometer. His attention was attracted to the road ahead when the bus driver 'tapped his brakes,' at which time the witness looked up and saw the Queen automobile. It was in the north bound traffic lane 'coming straight toward me' at a distance of about 'a city block and a half, or about five hundred feet.' When the bus driver tapped his brakes the bus did not slow down, but he swerved toward the left lane and was 'astride the center line' when the collision occurred. When the witness first observed the Queen vehicle it 'seemed to be a little bit on the shoulder' of the highway, and both its headlights were burning.
Roger Lee also had signed a statement for the investigator, which was duly introduced to impeach his testimony. Though he admitted having read and signed such a statement in his hospital room on the afternoon of July 11, 1965, he further testified as follows: 'I signed a statement, but that's not the statement.' According to the statement thus introduced, Roger was able to observe the speedometer of the bus and said it was traveling at a speed of 45 m.p.h. It was an hour late. The Queen car came out of the north end of the truck stop
James D. Wallace (bus driver)
Wallace was an emergency driver operating a...
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