McCoy v. Carter

• Decision Date: 06 March 1959
• Citation: 323 S.W.2d 210
• Parties: Orville B. McCOY and Model Dairy Products Company, Appellants, v. Nancy CARTER, Adm'x. of Estate of Charles William Carter, Deceased, and Bituminous Casualty Corporation, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 210

323 S.W.2d 210

Orville B. McCOY and Model Dairy Products Company, Appellants, v. Nancy CARTER, Adm'x. of Estate of Charles William Carter Deceased, and Bituminous Casualty Corporation, Appellees.

Court of Appeals of Kentucky.

March 6, 1959.

Woodward, Bartlett & McCarroll, Clarence Bartlett, Owensboro, for appellants.

Ridley M. Sandidge, Byron, Sandidge, Holbrook & Craig, Owensboro, for Nancy Carter, Admx. of Estate of Charles William Carter, Dec'd.

James M. Graves, John G. Hicks, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Bituminous Cas. Corp.

STEWART, Judge.

Plaintiff, Nancy Carter, as administratrix of the estate of her deceased husband, Charles William Carter, sued Model Dairy Products Company, its truck driver, Orville B. McCoy, and Vernon A. Stallings for $40,000 for loss of her husband's life and for his funeral expenses. Charles William Carter was killed as a result of a collision between the truck in which he was a passenger and an automobile driven by Stallings. Plaintiff averred her husband's death was due to the negligence of the three parties. Before trial, the complaint was dismissed as to Stallings. The jury awarded plaintiff $40,000 against the two remaining defendants.

Defendants appeal urging these grounds for reversal: (1) Their motions for a peremptory instruction at the conclusion of the introduction of plaintiff's evidence and also at the close of all the evidence were erroneously refused; (2) they were not allowed to interrogate jurors to ascertain whether they were qualified to impartially pass on the intervening complaint of Bituminous Casualty Corporation; (3) they were denied the right to state to the jury their case relative to the alleged claim of Bituminous Casualty Corporation; (4) certain instructions offered by them were erroneously refused and certain instructions given were erroneous; (5) counsel for plaintiff was guilty of misconduct during the progress of the trial; and (6) the verdict is excessive.

The accident occurred on December 27, 1955, about 8:30 a. m., on a clear day and on a dry, two-lane, concrete-surfaced highway, some three or four miles south of Ownensboro, the exact spot being where State Highway 81 is joined by the Martin Collins driveway. From the place of collision, the highway extends in an approximate straight line in each direction for at least a half mile. Three vehicles were involved; two of these were trucks travelling south, the other was an automobile going north.

Just before the accident, the milk truck owned by Model Dairy Products Company and driven by its employee, Orville B. McCoy, on a business run, was proceeding ahead of an oil field truck, a flat-bed Dodge, owned by Carl Helm and operated by his driver, Chester Carter. Charles William Carter, a brother of Chester Carter and also an employee of Carl Helm, was a passenger in the oil field truck. The automobile, operated by Vernon Stallings and coming toward the trucks, was a 1956 Pontiac. The three drivers were the only eyewitnesses to the collision.

Chester Carter, the driver of the oil field truck, testified he first noticed the milk truck moving ahead of him when some 300 to 350 feet from where the accident occurred and while making from 30 to 35 miles per hour. He stated it began gradually pulling over the center line as if to make a left turn into a driveway. He continued at the same rate of speed and in his traffic lane, intending to pass to the right of it; and then, when he was within 20 feet of the truck, it suddenly swerved back on its right side. To avoid hitting it, he took to the side of the road on his left and almost immediately collided with the Stallings automobile which was at that moment passing the milk truck. The oil field truck was knocked into a ditch, burst into flames and he had trouble dragging his brother, who caught on fire, out of the truck. According to Carter, no signal was given by the driver of the milk truck. He said he was unable to see the Stallings automobile until the instant before he made contact with it, because the width and height of the milk truck completely blocked it from his view.

Orville McCoy, the driver of the milk truck, testified he was delivering milk at the time on his regular route. When 75 feet from the Martin Collins driveway, where he planned to turn in to make a delivery, he observed through a mirror attached to the front side of his truck the oil field truck following him. His truck had no directional rear-light indicators, so that he had to slide open the door by using a hand lever and then signal by thrusting out his arm. He stated he gave a left-turn signal by extending his arm, and began to decrease his original speed of 15 miles per hour by gently applying his brakes when 40 feet from the driveway. While performing these acts, he noticed for the first time the Stallings automobile approaching him when it was approximately 115 feet away, travelling 50 to 60 miles per hour. This caused him to slow down the milk truck to about four miles per hour in order not to by-pass his turn, and the Stallings automobile moved by him and collided with the oil field truck near the rear of his vehicle. He declared the milk truck never at any time crossed the center line into the left lane of the road.

Vernon Stallings, the driver of the Pontiac, testified that he saw the milk truck coming toward him when 300 to 500 feet from the point of collision, straddling the center line, and this prompted him to slacken his speed somewhat; that when his car and the milk truck were 100 feet apart, it swerved back into its right lane; that he then passed it and collided with the oil field truck; that he never saw the milk truck driver give a signal; that he was travelling 50 miles per hour when he came into sight of the milk truck and then slowed to 35 miles per hour because it moved over the center line; that he did not have a view of the oil field truck until the collision for the reason that the milk truck obscured his vision; and that the collision occurred at a point near the end of the milk truck, just after the milk truck had cut completely back into the right lane and had stopped or nearly stopped.

Bituminous Casualty Corporation carried workmen's compensation insurance covering Carl Helm, the decedent's employer. The Workmen's Compensation Board awarded the widow of Charles William Carter and their two children benefits not to exceed $9,500 plus medical and funeral expenses, the whole totalling $10,075. The insurance carrier filed an intervening complaint in this action, asserting the right to reimbursement out of any judgment recovered against appellants by the administratrix. KRS 342.055 is relied upon as the basis for this right. When we mention appellee herein we refer to the administratrix, who is the real party in interest.

In arguing the trial court committed a prejudicial error in overruling their motions for directed verdicts in their favor, appellants contend Chester Carter, the driver of the oil field truck, failed to perform certain minimum statutory requirements and, if they had been complied with, the accident would not have happened. Thus, it is asserted Carter, the driver of the oil field truck, knew McCoy, the driver of the milk truck, expected to turn into the Martin Collins driveway, with the result that Carter was under a statutory duty to assist him in making that turn in safety. This duty, it is claimed, Carter ignored in his undue haste to pass the milk truck without knowing the peril that lay ahead of him. See KRS 189.350(2). It is also their position Carter violated KRS 189.340(3) in overtaking and attempting to pass the milk truck on the left side of the road without first ascertaining whether that portion of the road was free of oncoming traffic for such to be done without harm. It is maintained, too, KRS 189.340(7)(a) was not complied with in that Carter was trailing the milk truck more closely than was prudent and at a speed that was unreasonable under the circumstances.

Appellee contends a case was made out for the jury on the question of causative negligence on the part of McCoy, the milk truck driver, and appellants were therefore not entitled to peremptory instructions. Appellee asserts McCoy violated the lookout duty, KRS 189.290(1), since he admitted he did not take note of the Stallings automobile until it was 115 feet from him, although he was at the time undertaking a left turn. Appellee further insists McCoy did not observe KRS 189.380(1) when he turned from a direct course on the left side of the road back to the right lane of traffic under hazardous circumstances without giving any visible signal. It is also maintained he created an emergency by suddenly stopping, without warning, immediately in front of the oil field truck. Appellee points out, too, that Carter had the statutory prerogative to overtake and pass to the right of the milk truck driver, when he believed clearance was being made for him in his traffic lane. It is pointed out KRS 189.340(2) specifically provides: 'The operator of a vehicle may overtake and pass upon the right of another which is making or is about to make a left turn.'

We shall discuss other statutory provisions pertaining to the operation of motor vehicles upon a public highway, and relied upon by one or the other of the parties hereto, which we deem relevant to the facts brought out in this case, when we come to a consideration of questions raised as to certain instructions given and refused.

The question of proximate cause in connection with the occurrence of an accident is one of fact to be left to the jury where such cause is open to a reasonable difference of opinion. Stated somewhat differently, the issue of proximate cause should be withheld from the jury only if there is no dispute about the essential facts and but one conclusion may reasonably be drawn from the evidence. See Clardy v. Robinson, Ky., 284 S.W.2d 651, and ...