McLellan v. Threlkeld

• Decision Date: 16 June 1939
• Citation: 279 Ky. 114
• Parties: McLellan v. Threlkeld.
• Court: United States State Supreme Court — District of Kentucky

279 Ky. 114

McLellan v. Threlkeld.

Court of Appeals of Kentucky.

March 24, 1939.

As Modified on Denial of Rehearing June 16, 1939.

1. Automobiles. — Evidence whether motorist not slackening his speed of 35 or 40 miles per hour when meeting vehicles with blinding headlights from opposite direction was contributorily negligent in colliding with unlighted truck parked ahead of motorist with left wheels on main traveled portion of highway, was for jury (Ky. Stats., sec. 2739g-39).

2. Automobiles. — In motorist's action against owner of parked truck for injuries sustained in collision, instruction that owner should exercise ordinary care "so as to operate, manage, and use" truck "as not to cause it to come in" collision with other vehicles, should read "to exercise ordinary care in operating" the truck, "to avoid a collision."

3. Automobiles. — In motorist's action against owner of truck for injuries sustained in collision, instruction authorizing recovery if owner's violation of designated duties "contributed to cause or bring about" the collision, and if motorist's injuries proximately resulted therefrom, was error as permitting recovery even though accident would not have occurred but for motorist's contributory negligence.

4. Automobiles. — In motorist's action against owner of truck for injuries sustained in collision, instruction authorizing recovery if certain negligent acts of owner caused collision, and "that as direct and proximate result thereof, the plaintiff was injured,"

was not error as permitting recovery if injury resulted from collision rather than from defendant's negligence.

5. Automobiles. — A truck driver stopping truck at side of main traveled portion of highway for purpose of going to nearby telephone to make call relating to absence of lights on truck was not a "passenger" within statute prohibiting stopping of vehicles on main-traveled portion of highway except for purpose of receiving or discharging passengers (Ky. Stats., sec. 2739g-48).

6. Automobiles. — In action against owner of truck for injuries sustained by motorist colliding with truck partly parked on main traveled portion of highway, refusal to instruct that truck driver could park truck for purpose of going to nearby telephone was not error, since driver was not "passenger" within statute prohibiting stopping of motor vehicles on main-traveled portion of highway except for purpose of receiving or discharging passengers (Ky. Stats., sec. 2739g-48).

7. Damages. — In personal injury action, instruction to award damages if jury should find for plaintiff under "instructions heretofore given" was not reversible error for failure to state that damages should be direct and probable result of defendant's negligence, or as permitting recovery for expenses incurred in treating an injury other than that sustained by reason of such negligence, although in interest of accuracy, such instruction should limit damages awarded to damages directly and proximately resulting from defendant's negligence.

8. Damages. — In personal injury action, damage instruction authorizing recovery for permanent impairment of power to earn money, and for loss of time for the same period, was error as authorizing a duplication for the period of lost time.

9. Damages. — As respects damages, recovery for lost power to earn money begins when loss of time ends.

10. Evidence. — In automobile accident case, telegram from national capital stating time when sun set on day of accident was not admissible, where telegram was signed in type "Naval Observatory" without showing who signed telegram or by what authority.

11. Appeal and Error. — In automobile accident case, improper admission of telegram stating time when sun set on day of accident was not prejudicial where evidence showed that it was dark on highway (Ky. Stats., sec. 2739g-23).

Appeal from Warren Circuit Court.

John B. Rodes and Rodes & Willock for appellant.

Attkisson & Attkisson and Laurence B. Finn for appellee.

Before Robert H. Coleman, Judge.

OPINION OF THE COURT BY JUDGE RATLIFF.

Reversing.

Appellant has prosecuted this appeal from a judgment rendered against him in the Warren circuit court in favor of appellee for $1,500 for personal injuries sustained by appellee resulting from a collision between his automobile and a truck belonging to appellant.

The grounds relied on for a reversal are (a) that the court erred in overruling appellant's motion for a peremptory instruction directing a verdict in favor of appellant at the close of the evidence; (b) the instructions are erroneous; and (c) the court admitted incompetent evidence in favor of appellee. We will discuss these points in the order named.

The accident happened on December 8, 1936, at about five o'clock P.M., Central Standard Time, about twelve miles from Bowling Green, Kentucky. George McLellan, a son of appellant, who was driving the truck, parked it on the side of the road with the right wheels off the metal of main-traveled portion of the highway and the left wheels about three feet on the metal. Appellee was traveling in the same direction and his car struck the rear-end of the truck. It is reasonably well established by the evidence that it was dark and it is admitted that the truck had no lights and particularly no rear light at the time. The driver of the truck does not admit that it was dark at the time but he said it was "getting dark" and he saw that it would be dark before he got to Bowling Green and he parked the truck for the purpose of going to a nearby residence to telephone to his father in regard to having no lights on the truck.

The road at the place where the accident occurred is straight for several hundred feet, but appellee claims that because his vision was obscured by the headlights of cars approaching from the opposite direction and that the truck had no lights he did not see it until he was within about sixty feet of it, but it appears that he was more or less indefinite as to the distance. He was asked what speed he was traveling when he saw the truck and he said he was going between thirty-five and forty miles an hour and as soon as he saw the truck he applied the foot brakes. He admitted he did not slow or slacken his speed when passing the cars approaching from the opposite direction. He was asked how far he ran after he saw the truck and before he struck it, and he answered, "I am not prepared to say, but I don't think I ran over sixty feet." He said that two or three cars approaching from the opposite direction passed him and as soon as the last car passed he saw the truck, and he was again asked how far he was from the truck when he passed the last car, and he again said, "Approximately sixty feet." Appellee said his front lights were sufficient to reveal substantial objects in the road 200 feet ahead of him and his brakes were in good condition. He was asked why he did not see the truck, and he said, "Because there were other cars coming on, and their lights nullified mine." However, later in his testimony he said that if the truck had had a red light (meaning a rear light) he could have seen it even though his vision was obscured by the headlights of the approaching cars.

The last car that passed appellee before he struck the truck was being driven by Julian Bohannon, who was called as a witness for the appellee. Bohannon stated that he passed the truck parked on the side of the road and he met or passed appellee about eighty to ninety feet beyond the truck and after he passed he heard the collision. But after estimating the distance as being eighty to ninety feet, he was examined in reference to certain objects and physical facts. He said that appellee passed him at a place referred to as the "Calloway Fence" and that that fence was about 200 feet from where he passed the truck, and soon after appellee passed his car, he, appellee, put on the brakes. Bohannon said he went back to the scene of the accident the next morning and inspected the ground and saw skid marks on the road running north from where the truck was standing. He did not measure the distance of the skid marks but said that Mr. Calloway "stepped" them, but he estimated the distance to be ninety to a hundred feet from where the truck was parked. Mr. Calloway testified that the place of the accident where the truck was parked was between a hundred and fifty and two hundred feet from his south fence. Mr. Calloway further testified that he inspected the ground or road and stepped the distance from where the skid marks began to where the truck was parked and it was thirty steps, and another witness testified that it was from thirty to thirty-five steps.

Appellee did not testify in regard to the skid marks and his only evidence in reference to the distance he was from the truck when he saw it is that it was about sixty feet. It is seen from the uncontradicted evidence of the other witnesses that appellee passed the Bohannon car at about the south fence of the Calloway premises, which point was one hundred and fifty to two hundred feet from the truck, and also the skid marks show that appellee's car had skidded approximately ninety feet, and appellee says if he had not struck the truck his car would have skidded a car length or ten or twelve feet farther, and with this distance added he would have skidded approximately one hundred feet after he applied his brakes.

Appellant insists that the foregoing evidence establishes that appellee was guilty of contributory negligence as a matter of law and the court should have sustained his motion for a directed verdict in his favor. To support his position appellant relies upon Section 2739g-39 of the Kentucky Statutes, which provides that vehicles proceeding from the opposite direction shall pass each other to the right, each giving to the other one-half of the road as nearly as possible; and neither proceeding when on a straightaway unobstructed highway, at a greater rate of speed...