West v. Luchesi

509 S.W.2d 251, 1974 Ky. LEXIS 554

• Court: Court of Appeals of Kentucky
• Decided: February 15, 1974
• Status: Published

Opinions

STEINFELD, Justice.

On May 9, 1968, a dark and hazy night, at about 9:30 p. m. a limousine¹ which served the Paducah airport was being driven westwardly on U.S. 60 by Mary Blackwell. Roy West, whose administratrix is appellant, was riding his motorcycle in the same direction ahead of the limousine, with a car being driven by Mr. R. L. King traveling between him and the limousine. As West turned leftwardly to enter Holt Road, the limousine, having passed the King automobile, struck the motorcycle. Both West and Mrs. Blackwell were killed.

In the litigation which followed a verdict of $250,000 was rendered in favor of West’s estate,'but a new trial was granted on the ground that the verdict was excessive and for other reasons. On the second trial the jury found both West and Mrs. Blackwell guilty of negligence. A judgment was entered dismissing all claims, from which judgment West’s administra-trix appeals and Mrs. Blackwell’s administrator cross-appeals. Luchesi, et al did not appeal or cross-appeal. We affirm.

Each of the parties at the first trial had requested that a verdict in his favor be directed dismissing the claims being asserted against him. The trial court denied these requests.

West claims that the trial court erred in not sustaining his motion for a directed verdict and that the first verdict should not have been set aside, but if we hold that voiding the first verdict was not error the second trial should have been limited to damages only. Blackwell and Luchesi, et al argue that in both trials a directed verdict in their favor was appropriate and Blackwell argues that he should recover damages.

U.S. 60 runs east and west. Holt Road enters U.S. 60 from the south. West lived in a residence located at the southwest corner of that intersection. Mr. and Mrs. King, who live on U.S. 60 a short distance west of Holt Road, were returning to their home from Paducah, which city is approximately three miles to the east. They were the only eye witnesses to the accident. Mr. King testified at both trials, while Mrs. King appeared only at the second trial. Their testimony was substantially the same in all instances.

After leaving the city Mr. King, while driving at about fifty miles per hour, observed a dim red light some distance ahead of him and moving in the same direction in which he was traveling, but he was unable to tell what it was. He described the light as appearing somewhat dimmer than a bicycle reflector. Mr. King slowed his speed to approximately thirty-five miles per hour and followed the light for a mile or more, still unable to tell what it was. When he had come within 100 feet or a little more of the red light, he realized that it was a motorcycle. Also he became aware of the presence of the limousine passing him on the left. The limousine continued on and just after it had gotten by him and while it was still in the passing lane the motorcycle turned left across the centerline into the limousine’s passing lane. The impact, King testified, occurred two feet or a little more south of the centerline, with the right front of the limousine colliding with the left side of the motorcycle. The testimony regarding the point of impact was supported by the testimony of a police officer. The officer testified about marks in the surface of the road which were made by the vehicles involved in the collision.

After the collision the motorcycle continued in a northwestwardly direction approximately 103 feet and the limousine finally came to rest against a tree in West’s yard, a distance of 164 feet from the point of impact. Mr. King was asked whether West gave a signal of his intention to make a left turn. The pertinent questions and answers were as follows:

“Q34 Are you in a position to say whether he did or did not give a signal ?

A No, I am not.

Q3S In other words, he may have given one but you didn’t see it, is that what you are saying ?

A That’s right, I didn’t see one.

QS Do you believe if such a signal had been given that you would have seen it, since you were looking straight ahead ?

A I couldn’t say that.”

Mr. King stated that no horn or other signal was sounded by the limousine as it attempted to pass. KRS 189.340 requires a motorist to give such a warning before passing. KRS 189.380(1) prohibits a left turn by a vehicle unless it can be made in reasonable safety. Four headlights were following West only a short distance behind him, two of which were in the passing lane when he attempted to make the left turn. Counsel for West calls our attention to Maybrier v. Baldwin, Ky., 442 S.W.2d 585 (1969), in which a left-turning vehicle was absolved by law of any negligence in turning, it having been struck from the rear by another vehicle which was attempting to pass it. In Maybrier' we said,

“Nowhere in the evidence was there any testimony by any witness, express or implied, that Baldwin (the passing vehicle) turned (into the passing lane) before Mrs. Maybrier (the left turning vehicle) turned, or that he did so in time for her to observe his movement before undertaking her own.”

Here, there was conclusive evidence that the limousine had turned into the passing lane before West attempted to make his left turn and that the limousine had been in that lane for sufficient time for West to observe its movements before he undertook to turn.

It is our opinion that the evidence of the violation of statutory duties by West convicted him of contributory negligence as a matter of law, wherefore the court should have sustained the motions to dismiss the claim being asserted by West’s administratrix. However, this did not mean that Mrs. Blackwell, et al were entitled to recover on their claims, because at the very least the evidence of statutory violations by Mrs. Blackwell created a jury issue as to her contributory negligence as a claimant. Wright v. Clausen, 263 Ky. 298, 92 S.W.2d 93 (1936); Jewell v. Oglesby, Ky., 402 S.W.2d 439 (1966).

On the claim of West, we agree that it was error for the court not to dismiss that claim. On the claim asserted by Blackwell’s administrator and Luchesi, et al, whether it was error not to sustain West’s motion to dismiss we need not decide as the jury found in the first trial (and in the second trial which Blackwell’s administrator and Luchesi, et al had requested) that the driver of the limousine was negligent.

Other issues were presented, but we deem it unnecessary to discuss them.

The judgment is affirmed.

All concur, except OSBORNE, C. J., and REED, J., who dissent.

OSBORNE, C. J., files a dissenting opinion, in which REED, J., joins.

1 . For a case holding the exact opposite of Lockridge, see Cook v. Gillespie, 259 Ky. 281, 82 S.W.2d 347.