Bailey v. Barnett

470 S.W.2d 331, 1971 Ky. LEXIS 273
CourtCourt of Appeals of Kentucky
DecidedMay 7, 1971
StatusPublished
Cited by2 cases

This text of 470 S.W.2d 331 (Bailey v. Barnett) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Barnett, 470 S.W.2d 331, 1971 Ky. LEXIS 273 (Ky. Ct. App. 1971).

Opinion

DAVIS, Commissioner.

This controversy arises out of a two-vehicle collision which occurred on U. S. Highway 460 between Salyersville and West Liberty. Lige Bailey, defendant in the trial court and appellant here, was driving his unloaded truck westwardly on U. S. 460. Mrs. Gracie Barnett, one of the plaintiffs in the trial court and an appellee here, entered U. S. 460 from a private farm driveway intending to drive eastwardly. The farm driveway was located on the north side of the highway. Mrs. Barnett’s intended route of travel required that she cross the westbound traffic lane and turn to her left. The farm driveway was situated in a right curve for westbound traffic. The topography at the scene caused limited visibility for both the appellant and Mrs. Barnett.

Verdict for claimed personal injuries was rendered in behalf of Mrs. Barnett for $12,-000, and $5,000 in behalf of her eight-year-old son, a passenger in the car. The jury awarded nothing to Arlie Barnett, owner of the car driven by Mrs. Barnett.1 The counterclaim of Lige Bailey for personal injuries and property damage was dismissed pursuant to the verdict.2 On this appeal Bailey asserts that (1) Mrs. Barnett was guilty of contributory negligence as a matter of law in failing to yield the right of way; (2) no negligence of Bailey was shown; and (3) the verdicts are excessive.

Most of the basic facts surrounding the accident are not in dispute. Mrs. Barnett testified that she stopped at the mouth of the driveway before entering U. S. 460. She said that she looked in both directions and saw no vehicle approaching, whereupon she proceeded onto the highway. When asked on direct examination when she first observed Bailey’s truck, Mrs. Barnett responded :

“Well, before I got my car all the way across, I seen Bailey — I seen the truck coming, and I straightened up and then when I straightened up I noticed him coming right at me. I was in my lane and I had moved from where I had crossed, and I looked and seen him coming, which his truck was partly across.”

She explained that she meant that the truck was partly across the center line of the road into her lane. Mrs. Barnett declined to make any estimate of the distance between her car and Bailey’s truck when she first saw the truck. When asked about the speed of the Bailey truck, she answered:

“Well, I would say he was coming fast but I can’t give an estimate of how many miles he was going an hour. He had come so fast on me, but I would say fast.”

In her answers to questions on cross-examination, the following excerpt of Mrs. Barnett’s testimony is noteworthy:

“Q. When did you first see Bailey’s truck ?
A. Well, when I started across the road, before I got straightened up, I looked and seen him in the curve.
Q. Had you completely straightened up in your lane?
A. No, not when I seen him.
Q. Had you crossed the center line?
A. No.
Q. You had not gotten across the center line when you saw him coming?
A. No, not when I saw him coming.
Q. At that time did you see him swing to his left side?
[333]*333A. Well, I went on and straightened up and when I seen him where he had to cut his wheels for the curve, it looked like he just come straight, come right on my lane.
Q. Had he crossed over the center line when you saw him before you got in your lane and straightened up?
A. Well, I seen him coming and the first I seen of him his truck was partly across the line.
Q. Was it angled toward the lane you were going to get in?
A. It was angled toward the lane I was in.
Q. Now, if you saw him before you got across the center line, you saw him before you got in your lane coming this direction, didn’t you?
A. Yes, sir.”

Bailey’s truck left skid marks on the highway which were identified by a state trooper. The marks were fifty feet in length and began in Bailey’s westbound traffic lane and angled across the center line into the eastbound traffic lane. The point of impact between the vehicles was fairly well established as being slightly east of the driveway’s intersection with the highway. It was shown that the Barnett car was struck in its left front portion by the right front portion of the truck. The Barnett car came to rest about twenty-seven feet west of the point of impact heading in a westwardly direction, substantially in the center of the highway. The Bailey truck came to rest off the north side of the highway.

Bailey maintained that he was traveling between thirty-five and forty-five miles per hour and first observed the Barnett car as it was stopped in the mouth of the driveway with its front wheels barely on the blacktop. At that time, he estimated, he was within fifty feet of the Barnett car and in his proper traffic lane. Thereupon, according to Bailey, the Barnett car pulled into the highway leaving him no choice except to attempt to avoid a collision by driving to his left.

In support of his argument that Mrs. Barnett was guilty of contributory negligence as a matter of law, the appellant calls attention to KRS 189.330(7) which provides:

“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on the highway.”

Appellant concedes that the duty to yield is not absolute, since the failure to so yield does not absolve the favored driver of his duty to exercise reasonable care to avoid collision. Siler v. Williford, Ky., 350 S.W.2d 704, 708. Appellant contends, however, that the duty to yield is absolute in the sense that a failure to yield constitutes negligence and is not excused by the disfavored driver’s failure to see the favored vehicle, citing and relying upon Robinson v. Cull, Ky., 416 S.W.2d 346. An examination of the Robinson opinion discloses that the disfavored driver was permitted to recover despite a claim of contributory negligence as a matter of law. It was there recognized that a disfavored driver has a duty to look, which includes the duty of seeing what is obvious unless there is some excuse for not seeing it. In the Robinson case the collision occurred at night, and there was evidence that the favored driver was operating his car without headlights. In the present case there was evidence which would have warranted the jury to find that Mrs. Barnett did look to her left and that Bailey’s truck was not then so near the intersection as to be within her range of vision. In such a circumstance, it cannot be held as a matter of law that a driver is negligent in entering the highway from a private drive.

It will be remembered that fifty feet of skid marks were laid down by Bailey’s truck. The speed of the truck was [334]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Clark v. Johnston ex rel. Johnston
492 S.W.2d 447 (Court of Appeals of Kentucky, 1973)
Seymour Moskowitz v. Henry Earl Peariso
458 F.2d 240 (Sixth Circuit, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
470 S.W.2d 331, 1971 Ky. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-barnett-kyctapp-1971.