Ryan v. Payne

• Decision Date: 31 October 1969
• Citation: 446 S.W.2d 273
• Parties: B. Edward RYAN, d/b/a Ryan Packing Company and Harry M. Kirk, Appellants, v. Monotie PAYNE, Amos Payne and Joey Miracle Payne, an Infant Who Sues by his Mother and Next Friend, Monotie Payne and John Nichols, Appellees.
• Court: Kentucky Court of Appeals

446 S.W.2d 273

B. Edward RYAN, d/b/a Ryan Packing Company and Harry M. Kirk, Appellants, v. Monotie PAYNE, Amos Payne and Joey Miracle Payne, an Infant Who Sues by his Mother and Next Friend, Monotie Payne and John Nichols, Appellees.

Court of Appeals of Kentucky.

May 30, 1969.

As Modified October 29, 1969.

Rehearing Denied October 31, 1969.

Henry D. Stratton, Pikeville, Charles E. Duncan, Duncan & Lehnig, Louisville, for appellants.

O. T. Hinton, Pikeville, Emmett G. Fields, Whitesburg, J. K. Wells, Paintsville, for appellees.

OSBORNE, Judge.

Monotie Payne, Joey Miracle Payne and Amos Payne recovered judgment against the appellants, B. Edward Ryan, d/b/a Ryan Packing Company and Harry M. Kirk, in the total sum of $60,100 as compensation for personal injuries and damage to an automobile occasioned by a collision which took place on Highway 23 between Shelby and Pikeville on December 29, 1965. The controversy between the parties on this appeal arises out of the fact that the trial court directed a verdict against the appellants. Upon this appeal, appellants insist they were entitled to present their case to the jury under the theory that their driver was faced with a sudden emergency not of his own making.

Appellees contend that appellants' driver was negligent as a matter of law and if he were faced with an emergency, it was one of his own making and, therefore, he is not excused. Before the trial court can be justified in directing a verdict there must be no issue in the case upon which reasonable minds can differ considering all the evidence and especially that most favorable to the party against whom the verdict is directed. In order to resolve this question, we turn to the evidence.

The collision occurred on December 29, 1965, some time between 5:30 and 6:00 p. m. There is some conflict in the testimony as to the status of daylight at that time. However, appellee testified that she had her headlights on, therefore, we conclude that it was, if not totally dark, very close thereto.

The stretch of highway in question runs generally north and south between Shelby, Kentucky, and Pikeville, Kentucky. The exact point of impact was in front of a store described in the evidence as Vanderbilt Tire Company. The highway has two lanes, and is approximately 20 feet wide. Appellee was driving south; appellant was driving north. Just before getting to the Vanderbilt Tire Store, coming from the south headed north, there are two driveways which intersect from the east. These are referred to in the evidence as the Newsome driveway, which intersects approximately 80 to 100 feet south of the point of impact, and the Kelly driveway, which intersects around 300 feet south of the point of impact. Both roads intersect at approximately 45°, angling north. As appellants' ton and one-half refrigerator truck (hereinafter referred to as the meat truck) was being driven north with 5000 pounds of meat, appellee, Monotie Payne, was coming south driving an automobile. Her young son was on the seat beside her. The meat truck pulled across her lane and she hit it. The meat truck had swerved to miss a garbage truck driven by John Nichols, another appellee herein. The garbage truck had emerged from either the Kelly driveway or the Newsome driveway in front of appellants' meat truck. There is a sharp conflict as to where he entered and whether or not he had taillights. It is the testimony of appellants' driver that he suddenly cut his meat truck left into the path of Mrs. Payne's automobile causing the collision, because he was suddenly confronted with the garbage truck.

To take the testimony most favorable to the appellants, which we must do, it shows that the time was 6:00 p. m. and it was completely dark; that the meat truck was traveling between 35 to 40 miles per hour with the headlights on low beam;¹ that the garbage truck emerged from the Newsome driveway; that the driver of the meat truck first saw it approximately four or five car lengths ahead of him; that it was moving slowly at ten to fifteen miles per hour and that it had no lights and was loaded with a bunch of boards and garbage. The driver of the meat truck, upon first observing the garbage truck blocking the road, hit the brakes, locked the wheels and skidded 158 feet. Skid marks led from the meat truck's lane into and across the left lane indicating the driver applied the brakes hard and cut the truck hard to the left.

The foregoing facts are all consistent with the appellants' theory of the case that its driver was faced with a sudden emergency and had to brake and turn into the left lane in order to avoid colliding with the rear of the garbage truck.

Appellees contend, that admitting these facts, appellants were not entitled to a sudden emergency instruction because the evidence of appellants' driver shows that he did not see the garbage truck until he was four or five car lengths from it. They contend that this admission conclusively proves that he was either not keeping a lookout or that his lights were inadequate and that in either event his negligence either caused or contributed to the emergency. It is well settled that if a driver, by his own negligence, creates the emergency, he cannot then rely upon the emergency to absolve himself from the natural consequences of his act. Rabold v. Gonyer, 285 Ky. 618, 148 S.W.2d 728 (1941). In that case the driver saw a child in the street 348 feet away, continued his progress down the street while the child crossed to the center and when he was 150 feet away saw the child standing on the center line, but did not slacken his speed. The child then moved back out into the street. The driver was forced to swerve suddenly to the other side of the street colliding with oncoming traffic. We held under that set of facts that the driver's negligence in not anticipating the action of the child pedestrian created the emergency. However, we have consistently held that where a motorist suddenly comes upon an unlighted vehicle in his lane of travel at night, this constitutes an unexpected event which might not reasonably be anticipated by an ordinarily careful and prudent person, and therefore, does not amount to negligence as a matter of law. Owen Motor Freight Lines v. Russell's Adm'r, 260 Ky. 795, 86 S.W.2d 708 (1935); Tillman v. Heard, Ky., 302 S.W. 2d 835 (1957); Slusher v. Brown, Ky., 323 S.W.2d 870 (1959).

We have likewise held that where one is forced to suddenly switch lanes in daylight because of a vehicle in front of him suddenly checking its speed this is not as a matter of law such negligence as to warrant a directed verdict. Nall v. Larkin, Ky., 421 S.W.2d 74 (1967); McCoy v. Carter, Ky., 323 S.W.2d 210 (1959); Pratt Fruit Co. v. Sparks Brothers Bus Co., 313 Ky. 593, 233 S.W.2d 92 (1950). A test ordinarily applied by a jury in order to determine negligence is subjective in nature. We are of the opinion that failure to observe and properly judge traffic either standing or moving slowly upon the road ahead cannot be...