Vernon v. Gentry
| Decision Date | 05 February 1960 |
| Citation | 334 S.W.2d 266,79 A.L.R.2d 1 |
| Parties | Elizabeth V. VERNON, Administratrix of Estate of Dr. Frank Vernon, Deceased, and Naomi Stidham, Appellants, v. Ruby GENTRY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Baird & Hays, Dan Jack Combs, Pikeville, for appellants.
Charles E. Lowe, Pikeville, for appellee.
The appellee, Ruby Gentry, was injured in an accident on September 9, 1956, while a passenger in an automobile driven by appellant, Naomi Stidham. Ruby Gentry, hereinafter referred to as plaintiff, filed suit against Naomi Stidham, and against the estate of Dr. Frank Vernon, who was the owner of the automobile. The jury returned a verdict for plaintiff, and the appellants now contend they were entitled to a directed verdict (1) because Naomi Stidham was not negligent, or (2) because plaintiff was guilty of contributory negligence as a matter of law. For convenience we shall hereinafter refer to Naomi Stidham as defendant.
Both plaintiff and defendant were nurses in Pike County, Kentucky. In the early evening both parties had accompanied Dr. Frank Vernon to Haysi, Virginia, where it is shown that cocktails, dinner and dancing were enjoyed. Defendant testified that she had two, or possibly three, drinks during the evening. At approximately 3:00 a. m., the three left Haysi, Virginia in the automobile of Dr. Vernon, who was driving. After proceeding for some distance toward Elkhorn City, Kentucky, Dr. Vernon stated he was sleepy and requested the defendant to drive, which she agreed to do. When the automobile was stopped, and while the exchange of drivers was taking place, an automobile driven by Paris Epling passed and a short time later stopped on the side of the road and was in turn passed by the automobile driven by defendant. Upon being relieved of driving duties, Dr. Vernon seated himself in the center of the front seat and plaintiff was seated on the right side of the front seat. Dr. Vernon and plaintiff stated they were going to sleep, which they did. The defendant testified she drove for some time through patches of fog, and as she approached the city limits of Elkhorn City her right wheels went off the paved portion of the road, but she immediately controlled the movement of the automobile and regained the hard surface. At this point she was approaching a hazardous curve on which the hard surface of the road was partially broken. Defendant further testified that an automobile coming in the opposite direction suddenly appeared around the curve on her side of the road, and that in order to avoid a collision she turned the steering wheel hard to the right, which caused the automobile to go off the shoulder of the road and strike a tree. Paris Epling testified that the automobile driven by defendant passed him, going at a reasonable rate of speed, while he was stopped by the side of the road; that he was met by an approaching car approximately one-half mile before he reached the city limits of Elkhorn City, and that upon reaching the city limits he observed the accident; and that he stopped and gave aid to the parties. There is evidence that a whiskey bottle was found at the scene of the accident. Both plaintiff and defendant were injured in the accident, and Dr. Vernon was killed.
The circumstances of this case require us to determine if it is submittable under the doctrine of res ipsa loquitur. If the requirements are met, then a rebuttable presumption is raised by the plaintiff and the burden of overcoming that presumption shifts to the defendant. In the event the defendant can explain away the presumption so conclusively as to completely overcome it, he is entitled to a directed verdict. Lewis v. Wolk, 312 Ky. 536, 228 S.W.2d 432, 16 A.L.R.2d 474; Black Mountain Corporation v. Partin's Adm'r, 243 Ky. 791, 49 S.W.2d 1014.
The requirements which must be met in order to invoke the res ipsa loquitur doctrine are set out in Cox v. Wilson, Ky., 267 S.W.2d 83, 44 A.L.R.2d 830, as follows: (1) The defendant must have had full management of the instrumentality which caused the injury; (2) the circumstances must be such that, according to common knowledge and the experience of mankind, the accident could not have happened if those having control and...
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Johnson v. Foster
...unexplained. See Orme v. Burr, 157 Fla. 378, 25 So.2d 870 (1946); Rupe v. Smith, 181 Kan. 606, 313 P.2d 293 (1957); Vernon v. Gentry, 334 S.W.2d 266, 79 A.L.R.2d 1 (Ky.1960); Hamburger v. Katz, 10 La.App. 215, 120 So. 391 (1928); Nyberg v. Kirby, 65 Nev. 42, 188 P.2d 1006, 193 P.2d 850 (194......
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