Stevens' Adm'r v. Watt

• Decision Date: 15 December 1936
• Citation: 266 Ky. 608,99 S.W.2d 753
• Parties: STEVENS' ADM'R v. WATT et al. HEAD'S ADM'R v. SAME.
• Court: Kentucky Court of Appeals

99 S.W.2d 753

266 Ky. 608

STEVENS' ADM'R v. WATT et al.

HEAD'S ADM'R v. SAME.

Court of Appeals of Kentucky

December 15, 1936

Appeal from Circuit Court, Webster County.

Actions by Ocie Stevens' administrator and by Alpha Hand's administrator against C. P. Watt, Alfred Watt, and another. From a judgment for named defendants on directed verdict plaintiffs appeal.

Affirmed.

See also, ___ Ky. ___, 99 S.W.2d 755.

Vert C Fraser, of Providence, for appellants.

Withers & Lisman, of Dixon, and Davis, Boehl, Viser & Marcus, of Louisville, for appellees.

REES Justice.

A motion to consolidate these two cases has been sustained, and they will be disposed of in one opinion.

Alpha Head and Ocie Stevens were killed in an automobile accident near Providence, Ky. when the automobile in which they were riding ran into the rear of a truck parked on the side of the highway. The accident happened about 3 a.m. June 16, 1935. The automobile was a Ford coupé, and was owned and driven by Mrs. Fannie Dorris, who, accompanied by the two young women, had left Providence about 7 p.m. on the previous evening and had driven to a roadhouse located on highway 41, several miles north of Madisonville. They were returning to their homes when the accident occurred. An administrator of the estate of each decedent was appointed, and each administrator instituted an action against Fannie Dorris, C.P. Watt, and Alfred Watt, for damages for the death of his decedent. C.P. Watt and Alfred Watt were partners and owned the truck. It was alleged in each case that the death of the decedent was caused by the concurring negligence of the defendants. The two cases were tried together, and, at the conclusion of the plaintiffs' evidence, the trial court peremptorily instructed the jury to return a verdict for the defendants C.P. Watt and Alfred Watt, and the propriety of that ruling is the sole question presented on this appeal.

The facts briefly stated are: Appellees' truck, heavily loaded, was being driven south on highway 41 when the right rear wheel came off, dropping the axle to the ground. This happened about midnight. Herman Everett, an employee of the appellees, was driving the truck and C.P. Watt, one of the owners, was riding in the cab of the truck with the driver. The truck stopped to the right of the center of the traveled portion of the road. The road was constructed of concrete 18 feet wide, and was straight for several hundred feet in each direction. Watt immediately telephoned to a garage in Madisonville for assistance, and a mechanic soon arrived at the scene of the mishap. The rear of the truck was jacked up, but it was discovered that certain parts were missing, and the wheel could not be replaced so that the truck could be operated. The mechanic left to obtain the necessary parts, but was compelled to go to Henderson, a distance of 35 or 40 miles. The truck was equipped with four red lights on the rear, and these and the headlights were left burning. Two flares were also placed on the road, one in front of and one behind the truck. Each was about 125 feet from the truck. A highway patrolman arrived on the scene soon after the truck was disabled, and made a slight change in the location of the flares. He remained on the ground until about 2:30 a.m., and after traffic on the road had practically ceased. It was conclusively shown by appellants' own witnesses that the headlights and the red lights on the rear of the truck, as well as the two flares on the road, were burning just before the accident. One headlight, at least one red light, and the two flares were burning immediately after the accident. Some of the lights on the truck were destroyed by the collision. The automobile driven by Mrs. Dorris struck the rear of the truck, knocked it off the jack, and moved it forward 12 or 14 feet. The top of the automobile was completely crushed.

Section 2739g-48 of the Kentucky Statutes forbids the parking of an automobile upon the main traveled portion of a public highway, but the statute contains this proviso "Provided, however, that this section shall not apply to a vehicle which may be disabled while on such main travelled portion of the...