Ross v. Com.
| Citation | 275 S.W.2d 424 |
| Parties | Virgil ROSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 04 February 1955 |
| Court | United States State Supreme Court — District of Kentucky |
Howell W. Vincent, Joseph C. Healy, Covington, for appellant.
J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.
Appellant, Virgil Ross, was indicted for voluntary manslaughter by running his coal truck into a Chevrolet automobile and killing Lawrence Hartig near the intersection of 11th and Monmouth Streets in the city of Newport on November 7, 1953. He was convicted of involuntary manslaughter and his punishment fixed at a fine of $1,000 and imprisonment in the county jail for six months.
On appeal, the appellant urges that the court erred: (1) in permitting irrelevant and incompetent testimony to be introduced over the objection of appellant; (2) in failing to impanel the jury in the proper manner as provided by law; (3) in denying appellant's motion for a directed verdict; and (4) in failing to instruct on involuntary manslaughter, based upon gross and ordinary negligence.
Appellant was driving his loaded coal truck north on Monmouth Street in the city of Newport. Monmouth Street is a four-lane drive, and as it nears 11th Street, it runs upgrade. About sixty feet south of the intersection, and near the center yellow lines, the appellant collided with an automobile proceeding south and being driven by Russell Tiemeyer. The Tiemeyer automobile was knocked to its right and was struck by an automobile proceeding south in the outside lane, owned by William Dullaghan. When the vehicles came to rest, the truck was in the inside shouthbound lane. Tiemeyer's automobile was up on the burb to the right of the southbound lanes. Dullaghan's automobile was in the outside southbound lane, fifty to sixty feet south of the point of impact. As a result of the collision, Lawrence Hartig was killed. Dick Hartig and Jerry Steffen, also in Tiemeyer's car, and Tiemeyer were not injured. Appellant suffered a fractured spine. No one in the Dullaghan car was injured.
The appellant's evidence is to the effect that he was proceeding north on Monmouth Street at about 20 to 30 miles per hour when he came to an upgrade in the street and had to shift the gears of his truck in order to climb the grade. As he neared the intersection of 11th Street and Monmouth Street, the stoplight was red and three cars were stopped in front of him. As he proceeded to stop, Tiemeyer's automobile came over into the northbound inside lane and collided with the left front fender and wheel of his truck. When his truck came to rest, it ws blocking the southbound inside lane. Appellant further says that he had not been drinking; that shortly after the accident he got out of the truck and became unconscious as the result of his fractured spine; and that he didn't remember anything until the following Tuesday night. The accident occurred on Saturday night about 9:00 o'clock.
Albert Jurgens testified that he observed continuously appellant's driving of the loaded truck from a point approximately two miles distant to the place of the collision. He said he tried to pass the truck two or three times but each time the truck would weave over in front of his car so that he was unable to do so. Thereafter, he drove about forty or fifty feet in back of the truck, as it would weave from the inside lane to the outside lane. Jurgens stated that he was traveling about 45 miles per hour. The collision occurred when the traffic light at the intersection changed to red. Three vehicles stopped in front of the truck. Appellant did not stop behind these vehicles, but turned from the northbound inner lane to the southbound inner lane, striking the Tiemeyer car head-on, thereby killing Lawrence Hartig. Appellant objected to the introduction of Jurgens' testimony relative to the manner and description of appellant's driving for the last two miles just before the collision.
Ordinarily a witness will not be permitted to testify concerning the speed or manner in which a motor vehicle has been driven at points distant or remote from the place of collision. The is based on the sound reason that speed and manner of driving may vary greatly from...
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...State v. Wade, 1968, 99 N.J.Super. 550, 240 A.2d 689, 692; McGinnis v. United States, 1955, 1 Cir., 227 F.2d 598, 603; Ross v. Commonwealth, 1955, Ky., 275 S.W.2d 424; State v. Hunt, 1955, Mo., 280 S.W.2d 37, 40; Todd v. State, 1954, 233 Ind. 594, 122 N.E.2d 343; Dalton v. State, 1952, 230 ......
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