Potts v. Krey

• Citation: 362 S.W.2d 726
• Parties: Karl O. POTTS, Jr., et al., Appellants, v. Merrick KREY, An Infant by Harry E. Krey, His Next Friend, et al., Appellees.
• Decision Date: 07 December 1962
• Court: United States State Supreme Court — District of Kentucky

Page 726

362 S.W.2d 726

Karl O. POTTS, Jr., et al., Appellants, v. Merrick KREY, An Infant by Harry E. Krey, His Next Friend et al., Appellees.

Court of Appeals of Kentucky.

Dec. 7, 1962.

William E. Wehrman, R. Barry Wehrman, Covington, for appellants.

Rodney S. Bryson, Covington, Lindhorst & Dreidame, Cincinnati, Ohio, for appellees.

CULLEN, Commissioner.

Karl O. Potts, Jr., a truck driver, and Continental Coffee Company, his employer, appeal from a judgment awarding damages in the amount of approximately $28,000 to Merrick Krey, an infant, and his parents for personal injuries and resulting expenses incurred as a result of Merrick's being hit by a Continental truck operated by Potts. The primary contention of the appellants is that they were entitled to a directed verdict.

The accident occurred on a residential street at 5:15 p. m. on a September afternoon. The boy, five and one-half years of age, was struck by the right front bumper of the truck. The boy did not testify on the trial and the only other witness to the actual collision was Potts. He testified that he did not see the boy until he 'saw this flash from the right-hand front fender' and that he did not know that it was a boy he had struck until after he had brought the truck to a stop.

There were no vehicles parked on the street and there was nothing in the yards on the right side of the street for a distance of from 15 to 25 feet back from the street to obstruct the view of a motorist, except some telephone poles, 75 feet apart, standing two feet back from the curb. It is argued by the appellants that the boy might have come from behind a telephone pole, but the evidence as to where the truck came to a stop and as to the length of its skid marks tends strongly to indicate that the point where the boy was struck was at least 20 feet from the nearest telephone pole.

The situation thus presented is, that despite the absence of any view-obstructing obstacles for a distance of at least 15 feet back from the street, the truck driver did not see the boy until the moment of impact. While there was no direct evidence that the boy was in a position where he could have been seen, the circumstantial evidence indicates he must have been in such a position. In our opinion the circumstantial evidence warranted a finding that Potts negligently failed to keep a proper lookout, because the law requires not only that a person look when he should, but also that he see what he should see. Roberts v. Rogers, Ky., 265 S.W.2d 448; Tuggle v. Taylor, Ky., 282 S.W.2d 615. Also, as said in Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, and in Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897, a motorist who merely looks down a street in utter disregard of pedestrians on the side of the street will not be exonerated by the 'sudden appearance' of a pedestrian because any appearance is sudden to such a motorist.

The situation here is different from that in Benton v. Parks' Administrator, Ky., 272 S.W.2d 466, where the physical conditions along the side of the highway were such that it was just as likely that the child was concealed as it was that he was in a position where he should have been seen. The same is true as to Milburn v. Rager, Ky., 352 S.W.2d 198, when the accident occurred at night and there were conditions that could have concealed the pedestrian from view.

We have many cases such as Johnson v. Gaines, Ky., 313 S.W.2d 408, and Brothers v. Cash, Ky., 332 S.W.2d 653, exonerating the motorist where a child darted into the street from a concealed position or from behind a parked vehicle, but they are not applicable here because there was nothing here, close to the street, to conceal the child.

As concerns the matter of proximate cause, the question is whether the evidence would warrant a finding that the boy's position and movements were such that had Potts been maintaining a proper lookout he could have avoided hitting the...