Thomas v. Dahl
| Decision Date | 19 March 1943 |
| Citation | 170 S.W.2d 337,293 Ky. 808 |
| Parties | THOMAS et al. v. DAHL et al. |
| Court | Kentucky Court of Appeals |
Rehearing Denied May 4, 1943.
Appeal from Circuit Court, Jefferson County; B. H. Farnsley, Judge.
Action by John Dahl, Jr., etc., against Jerry Thomas, etc., and others, to recover damages for injuries sustained by the plaintiff when his bicycle was struck by the named defendant's delivery truck. Judgment for the plaintiffs and the defendants appeal.
Judgment reversed.
Woodward Dawson & Hobson, of Louisville, for appellants.
Edrington & Redmon, of Louisville, for appellees.
STANLEY Commissioner.
The judgment is for $7,336.75 damages for personal injuries of John Dahl, Jr., a 12-years old boy, suffered in the collision of his bicycle and a grocery delivery truck of the appellant Jerry Thomas, on July 25, 1941. The accident occurred in a public alley running north and south, parallel with and between Southern Parkway and Third Street, in Louisville. Both sides of the alley are lined with garages and entrances to the rear of the residences. There is a private driveway between two of these residences from Southern Parkway to the alley, entering it from the west. A concrete block garage on the northwest corner of the intersection obstructs the view towards the north on the alley and the west on the driveway. Dahl and another boy, Louis Gagel, had been chasing each other on their bicycles in the game of "Catchers," but they testified they had stopped playing and were on their way home. They went through the driveway with John in front and Louis a few feet behind him. As John came into the alley he was riding slowly because of some cinders or gravel in the way and the obstructed view. Before entering, he came almost to a stop and looked up and down the alley. He saw the appellant's truck coming to his left from the north two or three doors (about 100 to 150 feet) and judged that the truck would not get to him so soon that he could not safely enter the alley and turn to his left on the side to go north toward his home. He peddled fast when he saw the truck coming so fast but the bicycle and truck collided when he was a little beyond the center of the alley and about 20 feet south of the corner of the garage. As he went across the alley he cut across to his right first and then turned slightly to his left to the north, the direction from which the automobile was approaching. The collision was with the front of the bicycle and the right front fender of the automobile. It was so violent that it threw the boy up against the windshield and shattered it. He was severely injured, his skull, arm and leg being fractured. The immediate admissions of the driver of the truck, the appellant, William E. Coke, that, he was going 30 miles an hour and the circumstances particularly the lengthy skid marks on the paving of the alley and the violence of the impact, indicate that he was driving in excess of statutory speed limits. The garage sets back about two feet from the paving in the alley, which is 15 feet wide, and it was proved by test that a driver of a car going as was this truck when 60 feet away can see a person at the exit of the private driveway.
The defendant's evidence is that the truck was going about 20 miles an hour and was on the west or proper side of the alley, with the driver keeping a proper lookout. Coke testified the boy emerged from the driveway and into his view when only 15 feet away and that he did everything possible to avoid the collision by putting on his brakes and swerving to his left. It was proved that the two boys had stated before the trial that they were still playing "Catchers" as they came into the alley and that the injured boy had not stopped, thereby tending to prove they were intent upon their game and that the plaintiff had not been vigilant.
The appellants claim they were entitled to a peremptory instruction absolving them from liability. A bicycle is a vehicle and a public alley a highway within the definitions of the statute. Section 2739g-1, Ky. Stats. The driver of a vehicle about to enter a highway from a private driveway must yield the right of way to all vehicles approaching on it. Sec. 2739g-37, Ky.Stats. (now KRS 189.330). The Traffic Code of Louisville, Ordinance No. 435, compilation of 1939, likewise gave the truck the right of way. The appellants submit that the plaintiff's disregard of this duty to yield the way was the sole cause of the accident. It is argued the evidence of excessive speed of the truck had no causal or contributing part.
It seems to us that it was proper to submit to the jury the questions of primary negligence, contributory negligence and secondary negligence. Statutes prescribing the duty to yield the right of way to vehicles on a favored highway do not give the driver thereon the absolute and unqualified right to go ahead. It is a relative preference. The preferred driver has the right to assume, although not with implicit impunity, that the other driver about to enter his path of travel from a private driveway will yield to him; yet there remains the duty at all times to exercise reasonable care to avoid collision with other vehicles, and he cannot ignore their presence or possible presence. The duty to yield the right of way may depend upon whether the driver traveling at a lawful rate of speed is so close to the intersection that a prudent person under the circumstances would not have reasonable ground to believe he might safely enter the highway and would not come within the zone of danger. The driver on the subordinate way or street is required to slow down or stop and let the vehicle on the superior way pass when their positions are such that a reasonably careful man might otherwise be in doubt as to which should go first. Sec. 149, 151, Huddy, Automobile, Law, As is well said in Shuman v. Hall, 246 N.Y. 51, 158 N.E. 16, 17, (Note, Sec. 150, Huddy):
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