Owen Motor Freight Lines v. Russell's Adm'r

• Decision Date: 21 June 1935
• Citation: 260 Ky. 795,86 S.W.2d 708
• Parties: OWEN MOTOR FREIGHT LINES et al. v. RUSSELL'S ADM'R (two cases). SAME v. SAWYER'S ADM'R.
• Court: Kentucky Court of Appeals

86 S.W.2d 708

260 Ky. 795

OWEN MOTOR FREIGHT LINES et al. v. RUSSELL'S ADM'R (two cases).

SAME v. SAWYER'S ADM'R.

Court of Appeals of Kentucky

June 21, 1935

Rehearing Denied Nov. 19, 1935.

Appeal from Circuit Court, McCracken County.

Separate actions by Denzel Russell's administrator, by Ruth Meuren Russell's administrator, and by Kenneth T. Sawyer's administrator against Owen Motor Freight Lines and another which were consolidated for trial. From judgments for plaintiffs, defendants appeal.

Affirmed.

Eaton &amp Boyd, of Paducah, for appellants.

Wheeler Wheeler & Shelbourne, of Paducah, for appellees.

RICHARDSON Justice.

On the night of the 14th day of February, 1933, while en route from St. Louis, Mo., Denzel Russell, Ruth Meuren Russell, and Kenneth T. Sawyer were traveling in the cab of a truck operated by Sawyer, on highway No. 152, in Illinois. The truck in which they were traveling collided with the trucks of Obermark and the Owen Motor Freight Lines, causing the death of the three. Separate actions were filed in the McCracken circuit court by the administrator of their respective estates and were consolidated and tried as one. For this reason, we shall dispose of them in one opinion.

In their respective petitions, they pleaded the statute of Illinois and facts constituting their causes of action thereunder to recover damages of the Owen Motor Freight Lines and Charley Gaither, the driver of its truck at the time of the collision. A verdict in favor of their estates was returned for $5,000 each. From judgments thereon, these appeals are prosecuted.

For their defense, the Owen Motor Freight Lines and Gaither traversed the petitions and affirmatively alleged that Sawyer was operating the truck in which he and the Russells were traveling at the time of the collision "at a high and dangerous rate of speed"; that at that time "the highway was covered with snow and ice and the same was dangerous for fast traveling," and while the truck of the Owen Motor Freight Lines "was being operated in a careful, prudent manner," the "decedents negligently, carelessly and unlawfully operated the truck in such a manner as to drive same into and upon the rear of a truck parked on the side of said highway, and by reason of the negligent, careless and reckless manner in which the decedents operated the said truck, they occasioned and brought about the collision between the Owen Motor Freight Lines truck and the truck parked on the side of the highway, thereby causing their own death," and no acts of the defendants, or either of them, caused or contributed to their deaths. We shall reproduce the evidence and discuss its relation to the issues made by the pleadings.

The evidence is that Obermark's truck was parked on the right-hand side of the center of the concrete highway, about 4 feet on the concrete, about 10 o'clock at night, without lights, 1,300 feet from the brow of a hill to the point of the accident. The driver of the Owen Motor Freight Lines truck, when he was within about 60 feet of the rear of Obermark's truck, first discovered an object on the right-hand edge of the highway. Upon discovering it, he continued to operate his truck, steering it to the left of it. Upon reaching the side of the Obermark truck, he stopped or slowed down his truck and engaged in a conversation with two boys; one in the Obermark truck, and the other in the highway in front of it. He inquired of them if they needed any help, when one of them informed him that "Obermark had gone to town after help." At the moment of this conversation, one of the boys with Obermark truck who was in the highway in front of it, walked around to the side of the latter truck where he and Gaither for a moment engaged in talking, when the boy informed the occupant of the Obermark truck and also Gaither that there was a light of a motor vehicle coming over the hill, which the evidence discloses was about 1,300 feet from the point of the collision. This light turned out to be on the truck in which the decedents were traveling. On receiving this information, Gaither claims that while his truck had not entirely stopped, he began to operate it with a view of passing the Obermark truck while the truck in which the Russells and Sawyer were traveling was making the 1,300 feet to the point where it collided with Obermark's truck and the Owen Motor Freight Lines' truck.

The only thing urged by the Owen Motor Freight Lines and Gaither, as showing contributory negligence, is the speed at which the decedents' truck was traveling. Its speed alone is not necessarily sufficient to constitute contributory negligence on their part. In determining whether they were exercising due care for their own safety, the question of negligent speed is an element that may be taken into consideration with all the other surrounding facts and circumstances, and when so considered, may be found by the jury to be, or not to be, negligence. There is pleaded no statute of Illinois requiring a motor vehicle traveling in the rear of another to travel at any particular rate of speed.

In its absence, the universally recognized rules governing the operation of vehicles controlled the operation of the decedent's truck. We state them thus: The driver of a motor vehicle is negligent if he operates at a rate of speed which renders him unable to stop within the range of his vision which is obscured by either fog, dust, or other cause [ Bordelon v. T. L. James & Co. (La.App.) 148 So. 484]; also, where one vehicle is trailing another, the trailing motorist must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of the front vehicle suddenly stopping or decreasing his speed, so he can stop or decrease his speed to avoid a collision, or can turn out safely to pass the vehicle in front [ Rankin v. NashTexas Co. (Tex. Civ. App.) 73 S.W.2d 680; O'Rourke v. McConaughey (La.App.) 157 So. 598].

And "it is the duty of the driver of an automobile to maintain a speed sufficiently slow and to have such control of his car, that he can stop within the distance in which he can plainly see an obstruction or danger ahead." But these rules do not apply where a dangerous situation in which the driver of the automobile had no reason to expect another suddenly appearing immediately in front. "A person driving on a public highway *** has a right to presume and to act upon the presumption that the way is safe for ordinary travel, even at night, and he is not required to be on the lookout for extraordinary dangers or obstructions to which his attention has not been called." Jacobs v. Jacobs, 141 La. 272, 74 So. 992, 993, L. R. A. 1917F, 253.

These generally accepted rules accorded the privilege to the decedents to travel any place on the highway and at any rate of speed they saw fit, until the Owen Motor Freight Lines and Obermark's truck suddenly appeared in front of their vehicle. They were not obligated by the doctrine of ordinary care to keep a lookout for an unlighted, invisible truck in the lane of their travel, as was the Obermark truck.

The statute of Illinois (Smith-Hurd Ann. St. Ill. c. 95 1/2, § 17) on which the causes of action are predicated requires vehicles more than 80 inches wide and 25 feet long, "while being operated on the public highway," "outside the corporate limits of cities [and] towns," "during the period one hour after sunset," to "display on the front thereof (in) a horizontal line near the top of the vehicle, approximately six inches apart, three green lights plainly visible at a distance of at least 200 feet; also on the rear thereof in a horizontal line approximately six inches apart, three red lights plainly visible at a distance of at least 200 feet; *** also on the rear of the body of said vehicle, not more than twelve inches from the lower left hand corner, one red reflector." And "during the period one hour after sunset" to "display on each side of the vehicle at approximately the one-third points of the length of the same, at a height not exceeding five feet above the surface of the road, and reflecting on a line approximately at right angles to the center line of the vehicle, two amber tinted reflectors of a type approved by the Secretary of State." It requires (Smith-Hurd Ann. St. Ill. c. 121, § 161b) vehicles on "paved or hard-surfaced roads having two traffic lanes" to be operated "to the right of the center line of the paved or hard surfaced portion, and shall have the right of way on that traffic lane." "No driver of a vehicle shall stop the same on any durable hard surfaced State highway or allow it to stand in such position that there is not ample room for two vehicles to pass upon the road."

There is some evidence that the rear and side lights of the Owen Motor Freight Lines were not visible from the rear of its truck. Harold Beard, one of the boys with the Obermark truck, says: "I saw the lights of the second car (the truck of the decedents) about a quarter of a mile away, when the Owen Lines came along and I called to Mr. Poole that a car was coming. I called to Mr. Poole that a car was coming and I started running. I told the Owen truck to go ahead before I started to run. I believe that the Russell truck was about 40 feet away when I heard him put the brakes on. *** The truck hit just after I told this Owen truck to go ahead. We were throwing the spotlight sideways, not directly back." Gaither stated: "About the only lights the Russell truck could see, I believe, would be our tail lights and the test of the Obermark truck's stoplight. I do not remember seeing a tail light on the Obermark truck. I saw the rest of the spotlight on the pavement, not the reflector, when I was within about 50 or 60 feet of the Obermark truck."

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