State Contracting & Stone Co. v. Fulkerson

• Decision Date: 09 March 1956
• Citation: 288 S.W.2d 43
• Court: United States State Supreme Court — District of Kentucky
• Parties: STATE CONTRACTING & STONE COMPANY, Inc., et al., Appellants, v. Agnes FULKERSON et al., Appellees. STATE CONTRACTING & STONE COMPANY, Inc., et al., Appellants, v. Aline THOMPSON et al., Appellees. STATE CONTRACTING & STONE COMPANY, Inc., et al., Appellants, v. Nancy CLARK, by Next Friend, B. J. Clark, et al., Appellees.

Page 43

288 S.W.2d 43

STATE CONTRACTING & STONE COMPANY, Inc., et al., Appellants, v. Agnes FULKERSON et al., Appellees.

STATE CONTRACTING & STONE COMPANY, Inc., et al., Appellants, v. Aline THOMPSON et al., Appellees.

STATE CONTRACTING & STONE COMPANY, Inc., et al., Appellants, v. Nancy CLARK, by Next Friend, B. J. Clark, et al., Appellees.

Court of Appeals of Kentucky.

March 9, 1956.

William L. Wilson, Wilson & Wilson, Owensboro, for appellants.

Ridley M. Sandidge, Byron, Sandidge & Holbrook, Owensboro, Nathan B. Cooper, Owensboro, for appellees Agnes Fulkerson, Aline Thompson, and Nancy Clark.

Richard Robertson, Robertson & Robertson, Owensboro, for appellee Herman Fogle.

MONTGOMERY, Judge.

These actions arose from the operation of an automobile by appellee Herman Fogle as he swerved to avoid the road roller of appellant, State Contracting & Stone Company, Inc., operated by its employee, appellant Charles G. Morris. Fogle's car struck and injured three women, appellees Agnes Fulkerson, Aline Thompson, and Nancy Clark. Actions for damages were filed against appellants. Appellee Fogle was a third party defendant. The cases were consolidated for the purpose of trial. Verdicts against appellants were returned in favor of Agnes Fulkerson for $2,000, Aline Thompson for $2,500, and Nancy Clark for $2,500. Appellee Fogle also received a verdict against appellants in each case.

Appellants contend that: (1) the court erred in submitting the case to the jury; (2) the instructions were erroneous; and (3) a continuance should have been granted because of the absence of a material witness.

The injuries complained of were sustained at a place called Clark Hill on the Warrentown Road about one-half mile south of St. Joseph in Daviess County. The accident occurred about 3:30 p. m., on September 23, 1953. Shortly prior thereto, appellant company had been engaged in blacktopping a section of highway about one mile in length, traversing Clark Hill. The work of applying the blacktopping material had been completed two or three days before the accident, and the men and road equipment engaged had been moved to another job. No activities had been conducted for at least two days preceding the day of the accident.

All that remained to be done to the road was a final rolling to smooth out furrows in the surface created by traffic. For this purpose, a single roller had been left nearby. Appellant Charles G. Morris, an employee, had been sent back by appellant company to do the final rolling on the afternoon of the accident and was so engaged when the accident occurred. The road was not closed to traffic, and the evidence indicated that at the time of the accident the work had the appearance of a completed, though fresh, blacktopping job.

There were no signals, flags, or other warning at or near the scene of the work on the day of the accident. The evidence for appellees was positive that during the blacktop operation of some days previous no warning signs had been posted on or about the job. The operator of the roller said that he helped to place a sign at the south end of the work when it was commenced, but on cross-examination, he could not recall the language of the sign, how long the sign had remained, or whether any other signs had been erected. Two other witnesses for appellants recalled seeing some sort of sign, but neither could remember the language of the sign.

Appellee Fogle testified that he was driving northwardly about forty miles per hour on the Warrentown Road and had just reached the crest of Clark Hill from the south side when he saw the roller moving backward toward him, about eighty-five to one hundred feet away and in his lane of traffic. The roller completely obstructed the northbound lane. The road at this point passed through a narrow cut in the hill. He said there was no room to pass to the right of the roller and that he turned his automobile into the left lane in order to avoid a collision. As he did so, he became aware for the first time of three women standing in a group on the west side of the roadway, about twenty-five to seventy-five feet from the roller. In an attempt to avoid them, he tried to turn shortly back into the right lane, but his left rear tire hung onto the left shoulder of the blacktop to the point of collision with the women.

Appellants contend that the trial court erred in failing to direct a verdict for them. They urge that: (1) there was no negligence of appellants shown; (2) the proximate cause of the injury to each claimant was the negligence of appellee Fogle; and (3) the claimants were each guilty of contributory negligence as a matter of law.

It was contended that the operation of the road roller furnished only the condition or occasion of the injury and was not the proximate cause of the injury, relying upon Suter's Adm'r v. Kentucky Power & Light Co., 256 Ky. 356, 76 S.W.2d 29, and similar cases. The Suter case involved an automobile parked in a driveway so that the car extended three or three and one-half feet into the traveled portion of the highway. A partially-filled ditch across the street was complained of in Gaines' Adm'x v. City of Bowling Green, 235 Ky. 800, 32 S.W.2d 348. The ditch was insufficiently guarded and improperly lighted. In Stevens' Adm'r v. Watt, 266 Ky. 608, 99 S.W.2d 753, a disabled truck was parked to the right of the center of the road. The traveled part of the road was eighteen feet wide. Proper flares and other precautions had been used. The condition complained of in Winders' Adm'r v. Henry Bickel Co., 248 Ky. 4, 57 S.W.2d 1009, was a concrete conveyor placed across the sidewalk, blocking the sidewalk and one-half of the roadway. A parked car protruding upon the traveled part of the road was concerned in Hines v. Westerfield, Ky., 254 S.W.2d 728. In each of these cases, it was held that the defendant was entitled to a directed verdict because the circumstance was considered as a condition or occasion which was not the proximate cause of the injury.

In the cases relied on, there was a single stationary or static condition which could or should have been seen by the claimant in time to avoid the injury. In the present case, there is more than one circumstance on which to base the negligence of appellants as the proximate cause of the injuries. The road roller was a vehicle moving slowly backwards, obstructing entirely the wrong traffic lane, unseen over the crest of the hill, and without adequate, or any, warning. Its location on the highway was such as to be unexpected and without timely opportunity for discovery. Its position on the traveled part of the road at...