W.F. Robinson & Son v. Jones

• Decision Date: 29 May 1934
• Citation: 254 Ky. 637
• Parties: W.F. Robinson & Son v. Jones.
• Court: United States State Supreme Court — District of Kentucky

254 Ky. 637

W.F. Robinson & Son v. Jones.

Court of Appeals of Kentucky.

Decided May 29, 1934.

1. Automobiles. — In action for injuries resulting when plaintiff drove automobile into turntable which partially obstructed highway, evidence that turntable was unlighted held sufficient to take case to jury and to sustain verdict.

2. Automobiles. — One who places unlighted turntable in public highway must anticipate that some injury may result, although he may not anticipate particular injury.

3. Automobiles. — In action for injuries resulting when motorist drove into turntable obstructing highway, evidence tending to show that accident was result of act of approaching motorist in driving car on left side of road in passing around turntable obstructing highway, and of negligence of contractors in failing to have light on turntable, held to make question of proximate cause for jury.

4. Appeal and Error. — In action for injuries resulting when motorist drove automobile into contractor's turntable which obstructed highway, charge authorizing finding for plaintiff if contractors

failed to exercise reasonable care to "protect" travelers from colliding with turntable held prejudicial to contractors, where negligence relied on was failure to have light on turntable and use of word "protect" alone allowed jury to determine duty greater than that relied upon.

5. Evidence. — It is known that drinking of intoxicating liquor, though not to extent of intoxication, begets spirit of recklessness responsible for numerous automobile accidents.

6. Automobiles. — Statement of witness that immediately after automobile accident he smelled liquor on motorist's breath held admissible to give jury a complete picture of all that occurred and to enable it to determine questions of negligence and contributory negligence.

7. Evidence. — Answer of witness to question why persons were leading plaintiff's companion after automobile accident, "Because he was drunk," held statement of fact that he was drunk and not conclusion as to belief of such persons, and should have gone to jury on question of companion's credibility.

8. Automobiles. — In action for injuries resulting when plaintiff drove car into turntable, plaintiff could not recover unless it was necessary, or was reasonably believed necessary by him, to turn to left side to avoid collision with approaching automobile, since plaintiff had duty to drive to right on rounding curve where left side was obstructed and vision was not clear for 150 feet (Ky. Stats., sec. 2739g-35).

9. Automobiles. — If evidence showed that turntable obstructed highway and lacked light sufficient to warn travelers, and that motorist to avoid collision with automobile driven on left side of road in passing around turntable, and under actual or reasonable belief of necessity, and with exercise of ordinary care for safety, turned to left into turntable, motorist could recover.

10. Automobiles. — If evidence showed that motorist in rounding curve where contractor's turntable obstructed left side of road was driving on left side and did not have car under reasonable control or keep lookout, or use ordinary care in control of car, and that but for any or all such acts his injuries would not have occurred, motorist could not recover against contractors.

Appeal from Webster Circuit Court.

WITHERS & LISMAN and CARY, MILLER & KIRK for appellants.

CHAS. G. FRANKLIN AND J.W. POWELL for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

Lonnie Jones brought this suit against W.F. Robinson & Son, a partnership composed of W.F. Robinson, Alvin Robinson, and Lem Waitman, to recover for injuries to his person and his automobile. From a verdict and judgment in his favor for $2,000, the defendants appeal.

The facts are these: Appellants are public road contractors, and were engaged in improving Highway No. 41. About 8 o'clock on the evening of April 9, 1931, they placed a steel turntable on the inside of a sharp curve on the highway at a point about half a mile from its intersection with the Providence road. The turntable weighed several tons, was about 9 feet wide, and according to the estimates of the witnesses was from 15 to 30 feet in length. The evidence is not clear as to how far it extended in the highway, or as to how much of the highway was unobstructed. According to some of the witnesses for appellee, the turntable occupied almost half of the traveled portion of the highway, leaving only enough room for a car to pass on the other side. According to other witnesses the turntable occupied but a small portion of the highway, and the highway was unobstructed for a distance of from 10 to 24 feet. During the afternoon preceding the accident appellee had traveled the road and there was no obstruction there. On his return appellee was accompanied by C.R. Pritchett, and they entered the highway from the Providence road. As they drew near to the place of the accident, and while driving about 20 or 25 miles an hour, they saw a car approaching from the opposite direction. The approaching car turned suddenly to the left and into the path of appellee. To avoid coming in contact with the car, appellee turned to his left and ran into the turntable. His car was practically destroyed, and he and his companion were seriouly injured. Appellee says that the driver of the other car stopped and asked him if he needed any help. On the other hand, Pritchett testified that the car did not stop. Appellee and his companion saw no light on the turntable, and Bart Gooch, who passed and saw the turntable about an hour before the accident, testified that there was no light on the turntable and no guard there. On the other hand, a man by the name of Howard Lacefield, who claims to have been following appellee for about two miles, although appellee and his companion say that they turned in from the Providence road only half a mile distant from the place of accident, deposed that he was only 200 yards behind appellee, that he saw a red light on the turntable, and that appellee was driving on the wrong side of the road and was going about 45 miles an hour. He also deposed that the lantern was knocked off and was under the turntable, and that the globe was broken. Comer Springfield deposed that they had no lantern, and he went back to Nebo for one and borrowed it from Mr. Morrow. He took it back and one of the boys lighted it and set it up on the north end of the turntable. W.C. Shelton, appellants' bookkeeper, testified that a man by the name of Covetts came up with a light and he saw it placed on the turntable by a man by the name of Farmer. Charlie Jones testified that Mr. Springfield, the superintendent, brought a light, but Farmer placed it, he thought. J.Y. Farmer testified that he reached the turntable about 8 o'clock...