Siler v. Williford

• Decision Date: 31 January 1964
• Parties: Thomas Scott SILER, Appellant, v. Elsie WILLIFORD, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 262

375 S.W.2d 262

Thomas Scott SILER, Appellant, v. Elsie WILLIFORD, Appellee.

Court of Appeals of Kentucky.

Jan. 31, 1964.

Robert J. Watson, Middlesboro, for appellant.

William S. Tribell, John J. Tribell, Middlesboro, for appellee.

MONTGOMERY, Judge.

Thomas Scott Siler has appealed from a judgment by which Elsie Williford was awarded $15,000 for damages for injuries arising out of an auto collision. This is a second appeal. See Siler v. Williford, Ky., 350 S.W.2d 704, in which an award of $6,741 was reversed. The facts on the second trial were substantially the same as on the first except for variations in estimates of speed and distances and the proof of injuries.

Briefly, the case involves a collision between the Williford car, coming out of a private driveway, and the Siler car, traveling on Cumberland Avenue in Middlesboro. The collision occurred about 12:35 a. m. on a foggy night in October.

Appellant contends that KRS 189.330(7) is mandatory in requiring the driver of the vehicle about to enter or cross a highway from a private road or driveway to yield the right of way to all vehicles approaching on the highway. He says that the trial court should have held as a matter of law that appellee was contributorily negligent and that the court was in error in overruling his motions for directed verdict and for judgment notwithstanding the verdict.

Considering similar evidence heard on the first trial, this Court held that the issue of plaintiff's (appellee) negligence was for the jury. Appellee urges that the law of the case rule governs and that the decision on the first appeal controls. When an appellate court decides a question concerning evidence or instructions, the question of law settled by the opinion is final upon a retrial in which the evidence is substantially the same and precludes the reconsideration of the claimed error on a second appeal. Big Sandy Realty Company v. Stansifer Motor Company, Ky., 294 S.W.2d 529; Armstrong v. McGuire, Ky., 317 S.W.2d 902; Copley v. Craft, Ky., 341 S.W.2d 70. Cf. Union Light, Heat & Power Company v. Blackwell's Adm'r, Ky., 291 S.W.2d 539, 87 A.L.R.2d 264. The motions were correctly overruled.

With respect to whether KRS 189.330(7) imposes a mandatory duty on the driver on a private road or driveway, this Court, in the earlier opinion, held that 'the matter of who has the right of way is relative, notwithstanding the literal language of the statute.' Thomas v. Dahl, 293 Ky. 808, 170 S.W.2d 337. This Court, in the earlier opinion herein, directed the giving of an instruction embodying the principle that it was the duty of the driver of appellee's automobile before entering Cumberland Avenue to yield the right of way to appellant's approaching car and not to attempt to enter the street if the approaching car was so near that the driver of the appellee's car could not, by the exercise of ordinary care, avoid the collision. The jury was so instructed on the...