Preece v. Harless

662 S.W.2d 839, 1983 Ky. App. LEXIS 388
CourtCourt of Appeals of Kentucky
DecidedJune 3, 1983
StatusPublished
Cited by3 cases

This text of 662 S.W.2d 839 (Preece v. Harless) 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
Preece v. Harless, 662 S.W.2d 839, 1983 Ky. App. LEXIS 388 (Ky. Ct. App. 1983).

Opinion

MILLER, Judge.

The Martin Circuit Court directed a verdict against the plaintiff in a case involving personal injuries allegedly sustained by the plaintiff when he was backed over by a truck driven by the defendant. The directed verdict was based upon plaintiff’s contributory negligence and was entered at the close of plaintiff’s case. Plaintiff brings this appeal.

The scenario which led to Walker Preece’s accident began early on Sunday, February 22,1981, in the hollows of Davella in Martin County, Kentucky. That morning, about 9 o’clock, Don Harless arrived at Walker Preeee’s trailer. He was driving his truck. Don appeared to be intoxicated [840]*840when he arrived, and he became more inebriated as the day wore on. There was testimony that Don had been “on a drunk” since Thanksgiving.

About mid-morning Don talked Walker into riding with him to a grocery store to get some orange juice to mix with a half gallon of gin Don obtained from a “boy” visiting Walker’s daughter. Don drove on the trip to the grocery store. The trip to and from the store was uneventful. Don whiled away the afternoon drinking; Walker drank only three drinks during the day, according to his testimony.

Sometime in the late afternoon, Walker told his wife to begin preparing supper. Don said he wanted to get a friend to come and share the evening meal with them. Walker told Don he would go with him if Don would allow Walker to do the driving. Walker testified that he drove to the friend’s trailer, but Don insisted on driving back to Walker’s after they found the friend was not at home. The facts that led up to the fateful trip and Don’s ultimate driving are best described by Walker’s testimony:

Q. Now, what time does this take you up to?
A. Well, at the time we got back from the store and stayed there about all day.
Q. So he stayed then and continued on with you for what time?
A. Well, the old woman had laid down in there to rest, and I went in there and I told her, I said, “I am getting hungry, get up and get some supper.” And she got up and started cooking. And Don said he wanted to go down and get Alice Goble, said his wife left him and he didn’t have no cook, and he liked a good meal, and I didn’t want to go, and he just kept on, and I said, well, if you will go down there and back and let me drive, I will go with you, and the very words he said, “Hell, drive.” And when we got down there, he took the truck away from me.

On the way home, as they entered a fork in the road, Don yelled some harassing words at a red and white blazer truck coming toward them. An unidentified man in the approaching truck jumped out swinging a golf club. Seeing that Don was now slumped over the wheel, Walker got out of the truck to try to make peace. Before Walker could speak, he was hit about the head with the golf club. The beating was substantial. At this point, Walker took out a knife and threatened the man. The man retreated toward his truck. Next, Jimmy Fraley, who lives some 75 feet from where the altercation was taking place, heard the commotion and began to walk toward the two trucks. The unidentified men drove off, and Mr. Fraley turned to home. The whole incident was best described by Walker as follows:

Q. What took place then? Who was driving at that point?
A. Don. Well, we met this red and white blazer, white top and red on the bottom. And Don mumbled something to him, I don’t know, he cussed him, but I will be john if I could understand what he called him.
Q. Did he pass, actually pass side by side, in the vehicles?
A. Well, they had met-like, and Don just about hit him, but there ain’t no stop sign there at either place, but I would say the Wolf Creek side, a bunch of coal tractors, I would say they would have the right of way, and Don didn’t stop, he about run into the boy.
Q. And then what took place? What did those people do?
A. He come back just flying and stopped us, and jumped out with a golf club in his hand, when he jumped out of the truck.
Q. Did he say anything to you?
A. Yeah, he was cussing and cutting the awfullest shine ever was, wanting Don to get out. And Don’s glasses kindly fell down on his eyes, and had a partial plate, and it fell about halfway out, and he turned around and looked around at me and his eyes got about the size of quarters and he just keeled over on the wheel there as dead as a four o’clock.
[841]*841Q. Did they approach you all on towards the truck you were in? Did you see the guy get out?
A. No, he stood back there with that golf club jumping up and down and walking around, and I got out, intending not to pay no attention to Don, and I no more than stepped back at the end of the truck—
Q. So you got out then and said what to them basically?
A. I got out and started towards the back of the—
Q. You got out now and said what to them?
A. I got out and started back in toward the back end of the truck telling him to pay no attention to Don, he was drunk and had been all day, and he didn’t give me time hardly to open my mouth till he knocked me down with a golf club.
Q. Didn’t give you time to what now?
A. He didn’t give me time to tell him what I was aiming to tell him; he just swung that golf club and knocked me down.
Q. Well, where did he hit you at with the golf club?
A. He hit me around the head; the side of the head.
Q. Then did you proceed to try to talk to him, or what took place then?
A. I tried to raise up and when I raised up, he knocked me right back down. I seen that wasn’t going to work, and so I got up, and every time he would hit me, he would run around behind his blazer, I don’t know what made him run. Every time he would swing that golf club, he would just fly back behind that blazer. And the last time he done that, I got up and went around on the driver’s side, the front headlight, and put my arms up on the hood, and I pulled my knife out.
Q. Were you proceeding to talk to him at this time?
A. Now, you couldn’t talk to him. He was a crazy fellow, Buddy.
Q. Then what took place right at this time; did he hit you any more after them two licks?
A. He knocked me down two or three times, I can remember that time he knocked me down, he hit me so fast.
Q. Then you got up and went over toward them to them, and what was said then, I mean, when you went to their blazer? Did you say anything to them? What did you do then?
A. I tried to tell him not to pay no attention to Don, he was drunk, but he didn’t listen to me; he just felled me with that golf club, you could hear the wind blowing kind of.
Q. So some licks never hit you actually?
A. No.
Q.

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Bluebook (online)
662 S.W.2d 839, 1983 Ky. App. LEXIS 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preece-v-harless-kyctapp-1983.