Mullins v. Bullens
| Decision Date | 09 October 1964 |
| Citation | 383 S.W.2d 130 |
| Parties | Emma MULLINS, Adm'x of Estate of David Mullins, Deceased, Appellant, v. William Thomas BULLENS et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Charles R. Coy, James S. Chenault, Richmond, for appellant.
George T. Ross, Richmond, for appellees.
DAVIS, Commissioner.
Just after midnight in June, 1961, David Mullins was killed when he was struck by an automobile, owned by appellee Bullens, driven by appellee Gatliff. Bullens was riding in his car at the time of the accident. Upon trial of this wrongful death action (KRS 411.130) a jury returned a verdict for appellant for $21,197, which included funeral expenses and damages for decedent's automobile. Following entry of judgment upon the verdict, the trial court sustained appellees' timely motion for judgment n. o. v. The n. o. v. motion was coupled with an alternative motion for new trial. CR 50.03. The court granted the n. o. v. motion, and further ordered that in the event the court's ruling for judgment n. o. v. should be reversed, then the appellees' motion for new trial is sustained. Appellant challenges the rulings of the trial court on these grounds: (1) Decedent was not as a matter of law guilty of contributory negligence, (2) the doctrine of 'last clear chance' requires submission of the case to a jury, (3) appellees' negligence precludes their reliance upon 'sudden emergency doctrine,' (4) proof of appellee driver's intoxication reflects such wanton conduct as to deprive appellees of the defense of contributory negligence, (5) decedent did not as a matter of law assume the risk when making repairs to his disabled car, and (6) the conditional granting of a new trial was error.
About 11:45 p. m. on June 16, 1961, the decedent, accompanied by his brother and Frank Cope, left Richmond en route for their homes in Rockcastle County. All of them had had some beer to drink, although the quantity consumed is in dispute. When they had gone about four miles the hood on decedent's car came up so as to obstruct the view of the driver. Thereupon decedent brought the car to a stop--parking it with its left wheels on the traveled portion of the highway in its travel lane. The parking and tail lights were burning (according to evidence for appellant). Decedent and the other occupants of his car alighted from it and removed the hood from the vehicle. For about fifteen minutes they were in the process of trying to place the hood into the trunk of the car when appellee Gatliff, driving the automobile of appellee Bullens, drove the car so as to strike decedent, fatally injuring him. The appellees were also coming from Richmond and headed in the same direction as decedent.
Appellee Gatliff said that he first saw decedent's car when it was 125 to 150 feet in front of him. According to Gatliff, his headlights were working properly. The evidence for appellant reflects that the appellee's car laid down skid marks of 97 feet before colliding with Mullins and his parked car. After the impact, appellee's car crashed into a tree just off its left side of the highway; the tree is located about forty feet beyond the opint of impact. The Mullins car was knocked about thirty feet forward as the result of the collision.
There was evidence that blood samples taken from appellee Gatliff shortly after the accident indicated blood alcohol content of 0.13% by weight. Similar tests revealed 0.15% blood alcohol content for appellee Bullens. A test performed upon the corpse of Mullins, under circumstances challenged by appellant as failing to show that proper precautions were taken for accuracy, indicated a blood alcohol content of 0.21%.
Competent medical evidence disclosed at the trial that an individual of comparable size with those involved in the case will eliminate alcohol, in terms of blood weight, at the rate of 0.015% per hour. Using this factor, the witness deposed that appellee Gatliff's blood weight alcohol content was 0.15% at the time of the accident. Evidence was adduced that the driving ability of all persons will be impaired when the blood alcohol content is as high as 0.15%. See KRS 189.520(4) as to effect of various percentages in criminal prosecutions.
The accident occurred in a designated 35 mph speed zone. It is noted that some evidence was heard that the zone was designated as having a speed limit of 50 mph; the court submitted to the jury the question whether it was 35 mph or 50 mph. The weather was clear; the road was a dry bituminous blacktop concrete pavement. A qualified engineer, particularly trained in the matter of relating required stopping distances to the speed of automobiles, gave evidence relating to the required stopping distance for appellee's car. According to that evidence, the car of appellee would have come to a dead stop just as it reached decedent's car assuming a speed of 45 mph coupled with the skid mark of 97 feet. According to the same witness, under the prevailing conditions, if traveling at 35 mph, the car of appellee would have stopped after 57 feet of skidding--this, of course, would have left the car forty feet short of striking the decedent or his car. Appellee Gatliff testified that he was driving 46 mph when he first saw decedent's car, which was then 125 to 150 feet ahead of him. Gatliff said that the headlights on the Bullens car were functioning properly, but it was not developed whether they were on high or low beam. Appellee Gatliff had 800 feet of unobstructed vision to decedent's car after topping a grade in the highway. Conversely, decedent could have observed the approach of appellee's car during the same distance.
We are of the view that the decedent was guilty of contributory negligence as a matter of law; hence, it was error to submit the question of his contributory negligence to the jury. We are mindful that KRS 189.450(1)(a) provides that a vehicle may be stopped or left standing on the main traveled portion of a highway when the vehicle 'has been disabled while on the * * * highway in such a manner and to such extent that it is impossible to avoid the occupation of the main traveled portion or impracticable to remove it from the highway until repairs have been made * * * .' However, under the circumstances of this case we hold that the disabled condition of decedent's car was not of such nature as to warrant its being left standing in the highway for the nearly fifteen minutes between its first stopping and the collision. The quoted language of KRS 189.450(1)(a) evinces the principle that the nature of the car's...
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...driver was negligent in failing to remove, or attempting to remove, the truck from the highway.' Appellants rely upon Mullins v. Bullens, Ky., 383 S.W.2d 130, but that case, is not comparable. In Bullens the hood of the vehicle had come loose. The car was left standing in the traveled porti......
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...car. Parker's argument that as a matter of law Redden was contributorily negligent, or assumed the risk, rests strongly on Mullins v. Bullens, Ky., 383 S.W.2d 130. There the decedent and several of his companions were standing behind their car stopped on the highway at night, with their bac......
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Leger v. Watkins
...the jury on last clear chance even if it could have been said that decedent was contributorily negligent as a matter of law. Mullins v. Bullens, Ky., 383 S.W.2d 130. Appellant does not contend that the court erred in giving an instruction on contributory negligence and last clear Appellant ......