Campbell v. Markham

426 S.W.2d 431, 1968 Ky. LEXIS 644
CourtCourt of Appeals of Kentucky
DecidedMarch 29, 1968
StatusPublished
Cited by7 cases

This text of 426 S.W.2d 431 (Campbell v. Markham) 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
Campbell v. Markham, 426 S.W.2d 431, 1968 Ky. LEXIS 644 (Ky. Ct. App. 1968).

Opinion

PALMORE, Judge.

Appellee, Charles Markham, obtained a verdict and judgment in the amount of $38,-473.50 against Jesse Campbell and Campbell’s employers for personal injuries and property damages sustained by Markham when a truck driven by Campbell knocked or forced his automobile off the highway. Campbell and his employers, owners of the truck, appeal. They contend that (1) they were entitled to a directed verdict, (2) competent testimony offered in their behalf was improperly rejected, (3) they were entitled to a sudden emergency instruction, (4) they were entitled to an instruction specifically referring to Markham’s duties of maintaining a lookout and keeping his car under reasonable control, (5) the instruction defining contributory negligence as to Markham was erroneous, and (6) the award of damages was excessive. Our conclusion is that there was no error.

The accident happened on a straight stretch of U.S. Highway 41 a short distance north of Madisonville. The pavement was 22 feet wide and consisted of two lanes, one for northbound and the other for southbound traffic, divided by a broken white center line. The day was clear, the road was dry, and the time was between noon and 1:00 P.M., March 23, 1962. There was no northbound traffic. At least four vehicles were moving southward. First in line was a car driven by Kyle Corum, then a pickup truck driven by Henry Groves, and then Campbell’s tractor-trailer unit. According to all the witnesses except Markham, Markham’s Chevrolet automobile was the fourth and last vehicle in the line of traffic. Markham says there was another car, which we shall call car X, between him and Campbell’s truck, that car X passed Campbell’s truck and he followed suit, and that as he was alongside and in the act of passing the truck Campbell suddenly pulled to his left and the front tires of the trailer unit struck the right front door of the Markham car, which went out of control down the left shoulder of the highway and turned over in a field.

[433]*433Campbell testified that a short time before the accident he had noticed the Markham car following at a distance of 100 to 150 feet, that there was nothing else between, and that no other vehicle passed his truck. He gave three different versions of the event in a pretrial statement, a pretrial deposition, and his testimony at the trial, but we need not go beyond the latter, in which he described the accident as follows:

A- “Sunshiny day; clear. The vision was good, the road was dry, and I approached this last house out here where Holiday Inn is now, it wasn’t there at the time, and as I came over the raise of this hill, I came up behind a pick-up truck which was going down the road ahead of me down through this swag as you leave Holiday Inn, and down about the bridge I seen the stoplight come on on the pickup, I don’t know for how long, but it decreased his speed to which I thought he was stopped — stopping or stopped, but he could have been slowing down to four or five miles an hour. When his stoplight came on, I automatically hit my brakes, I suppose two, maybe three times, but sitting up in my truck, there was nothing coming that I could see, and I just dropped the gears and went on around the pick-up and the car in front of the pickup. And back about a mile or so down the road I had glanced in my mirror and seen a car behind me. When I went around these two cars down in this swag and was pulling back into my right-hand lane, I remembered that there was a car behind me, and I glanced in my left hand mirror, and at that time is when I seen the Chevrolet turning end over end down in the field south of the bridge.”

The highway crosses a small bridge guarded by concrete abutments 22 feet long. The abutments, or bridge rails, are 10 feet off the pavement. A yellow no-passing line for southbound traffic begins at a point about 100 feet north of the bridge and runs southward. There is a dispute as to whether the point of impact was within the yellow line area or north of it. Anyway, Corum, driving the lead vehicle, noticed some stakes set in the field to the left of the highway and decided to stop and look at them. After he cleared the south end of the bridge he pulled off onto the right shoulder and stopped. Groves, behind him, slowed down and also decided to stop. Groves pulled on around the slowing car of Corum and stopped on the shoulder in front of Corum. As his testimony indicates, when Campbell observed these vehicles slowing down in front of him he at first applied his brakes, thus decreasing his speed to some extent, but then decided it would be easier to pass than to stop his heavily loaded truck. There was no oncoming traffic, and Campbell’s field of vision was such that he felt it safe to go around even though he realized he would be in the no-passing zone before he could return to the southbound lane. Unfortunately, but admittedly, he did not take the precaution of checking his rearview mirror, for it is clear from the evidence that the Markham car was already in the left-hand lane and in the process of passing his trailer unit.

That there may be no question as to Campbell’s actions and the situation with which he was confronted, we quote additional salients of his testimony:

Q- “Now at what point did you go into the left lane?”
A- “As soon as I seen the stoplight come on on the pick-up, I realized he was slowing down and automatically I looked ahead to see if there was any oncoming traffic, which if there was I was going to have to stop. If there wasn’t I was going to go on around with the big load, because it is hard to stop.”
⅝ ⅜ s|e ⅜ ⅝ ⅜
Q- “When you began to swing back into the right hand lane, how far south of the abutment were you ?”
A- “I would say two hundred — between two and three hundred feet.”
[434]*434Q- “And then what happened? What did you see then ?”
A- “As I was swinging — I looked in my right mirror and seen I was clear of the vehicles I had passed, and I started back into my right lane, and I thought, ‘Where was the car that was behind me ?’ and I looked in my left mirror.”
Q- “That is when you saw the new Chevrolet ?’
A- “Right.”
Q- “Where was it?”
A- “It was on end when I saw it.”
Q- “Mr. Campbell, do you know what did happen insofar as the Chevrolet was concerned that day?”
A- “No.”
Q- “Did a horn blow?”
A- “No.”
* ⅝ * * * *
Q- “Did you cross the yellow line?”
A- “Yes.”
Q- “For what reason?”
A- “The reason- was the pick-up and car had slowed down, and I didn’t want to slow down the momentum of my truck unless it was absolutely necessary, and I glanced ahead and there wasn’t nothing coming so I went ahead.” [Emphasis added.]
Q- “No other cars passed you on that hill until Mr. Markham started around, if that is what he did ?”
A- “No.”
Q- “Did you hear a horn out there ?”
A- “No.”

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426 S.W.2d 431, 1968 Ky. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-markham-kyctapp-1968.