Roederer's Adm'x v. Gray

• Decision Date: 13 March 1934
• Citation: 69 S.W.2d 998,253 Ky. 669
• Parties: ROEDERER'S ADM'X v. GRAY et al.
• Court: Kentucky Court of Appeals

69 S.W.2d 998

253 Ky. 669

ROEDERER'S ADM'X v. GRAY et al.

Court of Appeals of Kentucky

March 13, 1934

Rehearing Denied April 24, 1934.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Suit by Henry J. Roederer's administratrix against Daniel T Gray, Sr., and another. From a judgment for defendants plaintiff appeals.

Reversed and cause remanded for a new trial.

Lawrence S. Grauman, of Louisville, for appellant.

Lukins & Jones, of Louisville, for appellees.

CLAY Justice.

Henry J. Roederer's administratrix brought this suit against Daniel T. Gray, Sr., and Daniel T. Gray, Jr., to recover damages for his death. From a verdict and judgment in favor of the defendants, the administratrix appeals.

It is first insisted that Daniel T. Gray, Jr., was guilty of negligence as a matter of law. The facts are these: About 3:30 o'clock on the morning of January 9, 1932, Roederer was driving a wagon on the Bardstown road. At a point between Bonnycastle avenue and Alta avenue his wagon was struck from the rear by an automobile driven by Daniel T. Gray, Jr., and belonging to his father, Daniel T. Gray, Sr. According to the testimony of the younger Gray, Roederer had no light of any kind on his wagon, and at the time of the accident he was on the curve between Alta and Bonnycastle. Because of the curve, the lights on his automobile were deflected, and he did not see the wagon until he was within 10 or 15 feet of it. He immediately applied his brakes and swerved his car to the left. The right front fender and bumper of the car struck the left wheel of the wagon. As a result of the jar, Roederer fell from the wagon and sustained injuries from which he died.

This is not a case where the driver of the car was blinded by lights while rounding a curve, as in Lexington-Hazard Express Co. v. Umberger, 243 Ky. 419, 48 S.W.2d 1066, or a case where there was a confusion of lights and the driver was going at an excessive rate of speed, as in United Coach Corporation v. Finley, 243 Ky. 658, 49 S.W.2d 544. It is a case where the driver of the machine was going around a slight curve at 25 miles an hour and ran into an unlighted wagon. Nothing is more dangerous to a motorist approaching from the rear than an unlighted vehicle. Because of this danger, the statute requires every vehicle used or operated upon any public highway, road, or street, whether it be in operation or stationary, to display at the rear a lighted lamp showing red, visible from the rear 200 feet away. Section 2739g-24, Kentucky Statutes, Baldwin's 1933 Supplement. Clearly a motorist has a right to assume that the operator of every vehicle on the highway has complied with the statute, and, if he looks up the road and sees no red light, to proceed on the assumption that no vehicle is immediately in front of him until it becomes reasonably apparent from his own lights or other means that such is not the case. In view of the evidence that there was no red light at the rear of the wagon, and of further evidence that the lights on the automobile were deflected and the driver did not see the wagon until it was only 10 or 15 feet away, it is at once apparent that the case is one where there may be a reasonable difference of opinion as to the conclusions to be drawn from the facts, and that the driver's negligence was therefore a question for the jury. Louisville & N. R. Co. v. Spears' Adm'r, 192 Ky. 64, 232 S.W. 60; Louisville & N. R. Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564.

Clearly the burden of showing the insufficiency of the lights was on plaintiff. No witness testified that the lights were insufficient. The only witness on the subject stated that the lights were burning and in...