Nally v. Boop
| Decision Date | 29 March 1968 |
| Citation | 428 S.W.2d 607 |
| Parties | Samuel Gerald NALLY, Appellant, v. Ted Lee BOOP, William Cline and Manuel Thornton, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Charles L. Hobson, Frankfort, for appellant.
Daniel Boone, Louisville, for Boop.
Marion Rider, Frankfort, for Cline and Thornton.
This is an appeal by Samuel Gerald Nally from a judgment of the Franklin Circuit Court entered upon a directed verdict awarding the appellee Ted Lee Boop $11,000 for personal injuries and the appellee Manuel Thornton $2323 for property damages. The judgment also dismisses the complaint of appellee Boop against the appellee Cline and the crossclaim of appellant Nally against the appellee Cline. The facts out of which the litigation arose are as follows:
On August 10, 1962, about 1:15 a.m. appellant Nally was entering onto Highway 60 from the private entrance of the Holiday Inn on the outskirts of Frankfort when an automobile owned by Manuel Thornton and operated by William Cline, in which Ted Lee Boop and Jerry Buckmaster were riding as passengers, came over the hill from Frankfort going in the direction of Louisville. The Cline automobile struck the Nally automobile in the rear after the Nally automobile had turned onto highway 60 and traveled some distance in the direction of Louisville. It is undisputed that the Cline automobile at the time it struck the Nally automobile was braking hard and skidded into the rear of the Nally automobile with its right side. It was testified by the highway troopers, who investigated the accident, that the Nally automobile traveled at least 150 feet before it finally came to rest and that the debris was within 25 feet of a telephone pole which was 81 feet from the center of the driveway to the Holiday Inn making the debris 106 feet from the center of the Holiday Inn driveway from which the Nally automobile had exited.
The trial court at the conclusion of all the evidence peremptorily instructed the jury to find for the appellee Boop against the appellant and to find for the appellee Cline on appellant's crossclaim against Cline. The action of the trial judge was based upon the opinions of this court in Riggs v. Miller, Ky., 396 S.W.2d 69 and Chambliss v. Lewis, Ky., 382 S.W.2d 207. The case at bar is distinguishable from these cases. In the Riggs case the driver of the vehicle entering from the secondary road testified that he did not come to a stop before entering upon the primary highway. The debris was found in the middle of the primary highway about 20 to 25 feet from the intersection. In the case at bar the evidence is undisputed that Nally stopped before entering upon the primary highway and the debris was found 106 feet west of the intersection in the westbound lane. In the Chambliss case the car entering from the secondary highway intended to cross the highway and was not turning with the traffic. The collision took place in the intersection. For the purposes of peremptory instructions the evidence most favorable to the parties against whom the motion is made must be taken as true, Metcalfe v. Hooper, Ky., 400 S.W.2d 531. Nally testified that he stopped before entering highway 60 and looked in both directions, and that he only saw the shadow of lights looming up over the hill from the east. Proof shows that an automobile can be seen in this direction by one sitting in a car for a distance of 750 feet. Proof further shows that the speed limit in this area is 45 miles per hour. With no vehicle in sight, he pulled onto highway 60 and turned west traveling 106 feet before being struck in the rear. Under these facts we do not believe appellant Nally was guilty of negligence as a matter of law, Siler v. Williford, Ky., 350 S.W.2d 704. Therefore, the issue of the negligence of Nally should have been submitted to the jury.
The trial court granted Thornton a directed verdict on the claim of Boop and on the claim of Nally...
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