Risen v. Pierce

807 S.W.2d 945, 1991 Ky. LEXIS 36, 1991 WL 51392
CourtKentucky Supreme Court
DecidedApril 11, 1991
Docket90-SC-251-DG
StatusPublished
Cited by18 cases

This text of 807 S.W.2d 945 (Risen v. Pierce) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Risen v. Pierce, 807 S.W.2d 945, 1991 Ky. LEXIS 36, 1991 WL 51392 (Ky. 1991).

Opinions

LAMBERT, Justice.

This Court granted discretionary review to consider whether the courts below erred in their determinations that the evidence did not require the jury to be instructed on the law relating to “one-lane bridges” and their determinations that remarks of appel-lee’s counsel during summation, though improper, were not prejudicial.

This litigation arose out of a collision between an automobile driven by appellee [946]*946and a bicycle ridden by Bruce Lee Risen. As a result of the collision, Bruce Lee Risen died, and this action for damages was brought by his personal representative, appellant herein.. The case was tried for two days before a six-person jury as agreed by the parties. The jury returned a verdict in which appellee was found negligent, but she was exonerated from liability by the jury’s finding that her negligence was not a substantial factor in causing the collision. Judgment was entered in accordance with the jury verdict, and on appeal, a unanimous panel of the Court of Appeals found no prejudicial error and affirmed the trial court.

The first issue we will address concerns the failure of the trial court to give an instruction requested by appellant which would have informed the jury of the duty of a driver approaching a one-lane road or bridge. While the necessity for such an instruction is rare due to the condition of modern highways, in a proper case the law requires that such an instruction be given. Short v. Robinson, 280 Ky. 707, 134 S.W.2d 594 (1939), and Foley’s Adm’r v. Witt, 294 Ky. 498, 172 S.W.2d 81 (1943). A general instruction as to the duties of drivers of motor vehicles is insufficient to apprise the jury of the special duties in and around one-lane roads and bridges. Short v. Robinson, supra.

To properly review the rulings of the trial court and the Court of Appeals on this issue, it is necessary to examine the facts in considerable detail. From the direction of appellee’s travel, Parkers Mill Road is narrow and curves to the left. Forty-one feet from the edge of the bridge the center striping of the road is discontinued and guardrails are located on each side as the bridge is approached. It is essentially undisputed that from the point of discontinuance of center striping (41 feet from the edge of the bridge), and continuing to and across the bridge to the other side, the roadway is one-lane. If the point of collision had been within this one-lane section, appellee concedes a one-lane instruction would have been appropriate.

From her testimony it appears that as appellee rounded the curve on Parkers Mill Road and approached the one-lane roadway, she saw appellant’s decedent riding a bicycle on the bridge and about to exit therefrom. Appellee believed the bicycle and its rider to be in her lane and according to her testimony, she began to take evasive action. First she swerved left, then right, and left again. Appellee’s automobile then collided with the bicycle ridden by appellant’s decedent at a point approximately 52 feet from the edge of the bridge, 10 to 12 feet outside of the “one-lane” roadway, and in the decedent’s lane of travel. Prior to the point of collision, appellee’s vehicle was in an all-out skid and finally came to rest partially inside the one-lane section.

The arguments of the parties for and against the giving of a one-lane bridge instruction may be summarized as follows: Appellee contends that since the point of collision was outside the one-lane section of roadway, albeit a very short distance, there was no reason to give such an instruction and this appears to be the view of the courts below. Appellant maintains that a broader view is required. He contends that in the vicinity of a one-lane bridge, legal duties arise prior to entering into the one-lane area, the principal of such duties being to yield the right of way and permit the other vehicle to safely clear before proceeding further. In other words, he contends that a driver approaching a one-lane bridge is not entitled to wait until the last moment before yielding to the other vehicle; that a driver approaching such an area must be in control of his vehicle so that he may safely reduce his speed and stop, if necessary, to permit the other vehicle to exit safely from the one-lane section. Without a one-lane bridge instruction, appellant argues, the jury is not fully apprised of the duties attendant upon the drivers.

There is a dearth of Kentucky authority on this issue and such authority as exists largely addresses the question of which vehicle has the right of way before either vehicle arrives at the one-lane bridge. It is generally the law that the vehicle first entering a narrow bridge or space has the [947]*947right of way and is entitled to proceed and “[i]n such a situation it becomes the duty of the latter to stop until the former has crossed over and cleared the way.” Short v. Robinson, supra 134 S.W.2d at 597. The one-lane bridge instruction set forth in Short and followed in Foley’s Adm’r substantially informs the jury of this rule of law. See also 1 0. Stanley, Instructions to Juries in Kentucky, § 115 (2d ed. 1957). In this case, however, there is no dispute that appellant’s decedent had the right of way and that he was entitled to exit and clear the one-lane section of roadway before appellee proceeded on. The inquiry presented is whether appellee had a prior duty to conform the manner in which she drove her car to the conditions she would encounter upon reaching a one-lane road.

According to her testimony, appellee saw the decedent when he was still on the bridge. This was well before she reached the one-lane section. She perceived him to be on her side of the road, a manifestly incorrect conclusion as the decedent was in the one-lane portion of the bridge or roadway. She explained her presence on the wrong side of the road at the point of impact as resulting from her attempt to avoid the decedent because he had been on what she thought was her side of the road. Thus, appellee’s own testimony as to her perception of right of way heavily implicated the one-lane section of roadway as a factor in the collision. Appellee knew or should have known that the decedent had the right of way and that he was entitled to a reasonable means of escape in the event she failed or was unable to yield. In such a circumstance, it was appellee’s duty to yield the right of way to the approaching bicyclist and to permit him to exit safely from the one-lane area, if in the exercise of ordinary care, appellee saw or should have seen that the bicycle ridden by the decedent was approaching so closely to her intended line of travel as to constitute an immediate hazard.

Conceptually, the situation which prevailed here is not dissimilar to a circumstance of discovered peril or “last clear chance.” This doctrine relieves a plaintiff of his antecedent negligence and imposes upon the defendant a duty to “employ the means at his command to avoid the injury, and this duty [begins] when [plaintiff’s] peril might have been discovered.” Weintraub v. Cincinnati, N & C Ry. Co., 299 Ky. 114, 184 S.W.2d 345, 347 (1944). While appellant’s evidence showed that the decedent was not guilty of any antecedent negligence, his position of peril was not unlike the peril of the decedent in Weintraub.

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Risen v. Pierce
807 S.W.2d 945 (Kentucky Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
807 S.W.2d 945, 1991 Ky. LEXIS 36, 1991 WL 51392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/risen-v-pierce-ky-1991.