Union Underwear Co. v. Barnett

• Decision Date: 21 February 1941
• Citation: 285 Ky. 488
• Parties: Union Underwear Co. et al. v. Barnett.
• Court: United States State Supreme Court — District of Kentucky

285 Ky. 488

Union Underwear Co. et al. v. Barnett.

Court of Appeals of Kentucky.

February 21, 1941.

1. Automobiles. — Where no person other than deceased motorist and truck driver witnessed collision, and truck driver testified in death action that motorist swerved over to wrong side of highway, judgment in favor of deceased motorist's administratrix could not be sustained, unless position of vehicles or marks on highway immediately after collision indicated that some part of truck was on wrong side of center line of highway at time of collision.

2. Trial. — Where truck driver, who was only living witness of collision, testified that motorist swerved over onto wrong side of highway, plaintiff's evidence concerning location of oil, scratch and dent on pavement, was insufficient to take case to jury,

where it merely showed possibility that truck might have been on wrong side of the highway when it collided with automobile.

Appeal from Shelby Circuit Court.

Todd & Beard for appellants.

Kinsolving & Reasor, R.F. Matthews, and Bernard B. Davis for appellee.

Before Charles C. Marshall, Judge.

OPINION OF THE COURT BY JUDGE TILFORD.

Reversing.

Death stalked Highway 60 in the early morning hours of April 7, 1939, and claimed as its victim James W. Barnett who was returning in his automobile to his home in Shelbyville from a tourist camp two and a half miles west of that city. The instrumentality employed was a heavy truck owned by the appellant, Union Underwear Company, driven westwardly, which collided with Barnett's car about a quarter of a mile west of the city limits. The night was clear, the lights of both vehicles were burning, and the only testimony as to the cause of the fatal accident was that given by the appellant, Carroll Payton, the driver of the truck, who stated that he saw Barnett's automobile when it was three or four hundred feet away approaching at a speed which he estimated to be fifty miles an hour, and that when it was a car length or a car length and a half from the truck, it swerved to the left and struck the left front bumper, fender and body of the truck which he was driving on the north side of the road, its left extremity at least twelve inches from the center line. No person other than the victim and the truck driver witnessed the collision, and unless the position of the vehicles or the marks on the road immediately afterward indicated that some part of the truck was south of the center line at the time the collision occurred, the judgment from which this appeal is prosecuted awarding the appellee administratrix $5,000 damages for the death of her decedent and $115 for damages to the automobile, cannot be sustained.

According to the undisputed testimony, Barnett's automobile, immediately after the accident, which occurred shortly before one o'clock A.M., was standing diagonally across the road headed northeast with its left front wheel thirty-two inches north of the center line, and the truck was parked off the concrete on the north side of the road at a point two...