Mitchell v. Doolittle ex rel. Doolittle

429 S.W.2d 862, 1968 Ky. LEXIS 765

• Court: Court of Appeals of Kentucky
• Decided: June 28, 1968
• Status: Published

Opinions

CULLEN, Commissioner.

On a cloudy, gloomy afternoon in December Arnel Baker was operating David Mitchell’s dump truck along blacktopped U. S. Highway No. 68 when he encountered a funeral procession coming from the other direction. Somehow conceiving that such would be an act of courtesy, Baker undertook to bring his truck to a stop in the middle of his lane of traffic. Gary Doolittle, driving a small sports car and approaching from the rear of the truck, over the crest of a rise and around a curve, was unable to stop his car and after skidding 117 feet his car struck the rear of the truck with a moderate impact, damaging the car and causing personal injuries to Doolittle. Doolittle could not pass the truck on the left because the left side of the road was occupied by the funeral procession, and he could not pass on the right because there was a high bank close to the road on that side. At the time of the impact the truck either had stopped or was about to come to a stop.

Doolittle sued Baker and Mitchell for damages and the jury awarded him $6,250, for which judgment was entered. Baker and Mitchell have appealed, asserting as their sole ground of error that Doolittle was contributorily negligent as a matter of law. (They concede their own negligence.)

The appellants’ argument is predicated entirely upon their contention that the testimony of one of Doolittle’s own expert witnesses showed that he had an unobstructed view of the truck for a distance of 517 feet back from the point of impact.

As we read the testimony it does not plainly bear the interpretation the appellants seek to give it. In the first place, it is not at all clear whether the 517-foot measurement, which commenced at a mailbox back from the crest of the hill in the direction from which Doolittle came, stopped at the point of the accident or extended beyond that point to the foot of the hill (to which latter place visibility might have been better). At one place the testimony seems to say that the distance from the mailbox to the point of the accident was only 400 feet. In the second place, the testimony is that at the mailbox a person seated in a car of the size of Doolittle’s could see so much of an object at the point of accident as extended more than 5 feet 10 inches in height. So only the top few inches of the truck would have been visible from the site of the mailbox. In the third place, the testimony gives no significance to the fact that the truck was still moving when Doolittle was at the mailbox and it does not indicate what visibility Doolittle would have had of the truck when it had not yet reached the point where it stopped. And in the fourth place, the testimony makes no allowance for the time required for Doolittle to become aware that the truck was ceasing to move.

Evidence in the case, other than the testimony above discussed, indicated that the truck was not visible, at the point of collision, to a motorist approaching from the rear, until his vehicle reached the crest of the hill which was only some 162 feet from the point of collision. Doolittle said he did not see the truck until then. Several persons who were in the funeral procession testified that they did not see Doolittle’s car until it reached the crest of the hill.

Since the appellants rest their appeal solely upon the claim of a 517-foot visibility, and since that claim is not clearly supported, their appeal must fail.

We may say that while a motorist is required to exercise extra care when his view is obstructed by some unusual condition, such as smoke, fog, glaring lights, etc., we do not conceive the law to be that he must be prepared for the possibility of confronting an illegally stopped car beyond every curve and past the crest of every hill. On the contrary, he is entitled to assume that the highway is reasonably safe for ordinary travel and he does not have to anticipate the presence of an extraordinary hazard such as an illegally stopped vehicle. See Duncan v. Wiseman Baking Company, Ky., 357 S.W.2d 694; Adams Construction Company v. Short, Ky., 324 S.W.2d 118; Crawford Transport Company v. Wireman, Ky., 280 S.W.2d 163.

We are aware that in Lexington-Hazard Express Co. v. Umberger, 243 Ky. 419, 48 S.W.2d 1066, and in Freeman v. W. T. Sistrunk & Co., 312 Ky. 438, 227 S.W.2d 979, a different rule is stated, but we have not considered that rule to be sound. See Ashton v. Roop, Ky., 244 S.W.2d 727, DeBuyser v. Walden, Ky., 255 S.W.2d 616, and Duncan v. Wiseman Baking Company, Ky., 357 S.W.2d 694.

The judgment is affirmed.

All concur except OSBORNE, J., who dissents.