Ryan v. Payne
Ryan v. Payne
Opinion of the Court
Monotie Payne, Joey Miracle Payne and Amos Payne recovered judgment against the appellants, B. Edward Ryan, d/b/a Ryan Packing Company and Harry M. Kirk, in the total sum of $60,100 as compensation for personal injuries and damage to an automobile occasioned by a collision which took place on Highway 23 between Shelby and Pikeville on December 29, 1965. The controversy between the parties on this appeal arises out of the fact that the trial court directed a verdict against the appellants. Upon this appeal, appellants insist they were entitled to present their case to the jury under the theory that their driver was faced with a sudden emergency not of his own making.
Appellees contend that appellants’ driver was negligent as a matter of law and if he were faced with an emergency, it was one of his own making and, therefore, he is not excused. Before the trial court can be justified in directing a verdict there must be no issue in the case upon which reasonable minds can differ considering all the evidence and especially that most favorable to the party against whom the verdict is directed. In order to resolve this question, we turn to the evidence.
The collision occurred on December 29, 1965, some time between 5:30 and 6:00 p. m. There is some conflict in the testimony as to the status of daylight at that time. However, appellee testified that she had her headlights on, therefore, we conclude that it was, if not totally dark, very close thereto.
The stretch of highway in question runs generally north and south between Shelby, Kentucky, and Pikeville, Kentucky. The exact point of impact was in front of a store described in the evidence as Vanderbilt Tire Company. The highway has two lanes, and is approximately 20 feet wide. Appellee was driving south; appellant was driving north. Just before getting to the Vanderbilt Tire Store, coming from the south headed north, there are two driveways which intersect from the east. These are referred to in the evidence as the New-some driveway, which intersects approximately 80 to 100 feet south of the point of impact, and the Kelly driveway, which intersects around 300 feet south of the point of impact. Both roads intersect at approximately 45°, angling north. As appellants’ ton and one-half refrigerator truck (hereinafter referred to as the meat truck) was being driven north with 5000 pounds of meat, appellee, Monotie Payne, was coming south driving an automobile. Her young son was on the seat beside her. The meat truck pulled across her lane and she hit it. The meat truck had swerved to miss a garbage truck driven by John Nichols, another appellee herein. The garbage truck had emerged from either the Kelly driveway or the Newsome driveway in front of appellants’ meat truck. ' There is a sharp conflict as to where he entered and whether or not he had taillights. It is the testimony of appellants’ driver that he suddenly cut his meat truck left into the path of Mrs. Payne’s automobile causing the collision, because he was suddenly confronted with the garbage truck.
To take the testimony most favorable to the appellants, which we must do, it shows that the time was 6:00 p. m. and it was completely dark; that the meat truck was traveling between 35 to 40 miles per hour with the headlights on low beam;
The foregoing facts are all consistent with the appellants’ theory of the case that its driver was faced with a sudden emergency and had to brake and turn into the left lane in order to avoid colliding with the rear of the garbage truck.
Appellees contend, that admitting these facts, appellants were not entitled to a sudden emergency instruction because the evidence of appellants’ driver shows that he did not see the garbage truck until he was four or five car lengths from it. They contend that this admission conclusively proves that he was either not keeping a lookout or that his lights were inadequate and that in either event his negligence either caused or contributed to the emergency. It is well settled that if a driver, by his own negligence, creates the emergency, he cannot then rely upon the emergency to absolve himself from the natural consequences of his act. Rabold v. Gonyer, 285 Ky. 618, 148 S.W.2d 728 (1941). In that case the driver saw a child in the street 348 feet away, continued his progress down the street while the child crossed to the center and when he was 150 feet away saw the child standing on the center line, but did not slacken his speed. The child then moved back out into the street. The driver was forced to swerve suddenly to the other side of the street colliding with oncoming traffic. We held under that set of facts that the driver’s negligence in not anticipating the action of the child pedestrian created the emergency. However, we have consistently held that where a motorist suddenly comes upon an unlighted vehicle in his lane of travel at night, this constitutes an unexpected event which might not reasonably be anticipated by an ordinarily careful and prudent person, and therefore, does not amount to negligence as a matter of law. Owen Motor Freight Lines v. Russell’s Adm’r, 260 Ky. 795, 86 S.W.2d 708 (1935); Tillman v. Heard, Ky., 302 S.W.2d 835 (1957); Slusher v. Brown, Ky., 323 S.W.2d 870 (1959).
We have likewise held that where one is forced to suddenly switch lanes in daylight because of a vehicle in front of him suddenly checking its speed this is not as a matter of law such negligence as to warrant a directed verdict. Nall v. Larkin, Ky., 421 S.W.2d 74 (1967); McCoy v. Carter, Ky., 323 S.W.2d 210 (1959); Pratt Fruit Co. v. Sparks Brothers Bus Co., 313 Ky. 593, 233 S.W.2d 92 (1950). A test ordinarily applied by a jury in order to determine negligence is subjective in nature. We are of the opinion that failure to observe and properly judge traffic either standing or moving slowly upon the road ahead cannot be said as a matter of law to be negligent, be it daylight, dusk or dark. However, we have also recognized that in dealing with this problem no hard or fast rule can be laid down. Slusher v. Brown, supra; Crawford Transport Co. v. Wireman, Ky., 280 S.W.2d 163 (1955); De Buyser v. Walden, Ky., 255 S.W.2d 616 (1953) ; City of Providence v. Young, 227 Ky. 690, 13 S.W.2d 1022 (1929). Likewise, we have consistently held that the adequacy of headlights to reveal objects upon the road is one for the jury and the fact that a driver does not detect an object until it is well within the maximum range required of headlights by the statute does not in itself indicate negligence as a matter of law. Service Lines, Inc. v. Mitchell, Ky., 419 S.W.2d 525 (1967).
For the foregoing reasons, we are of the opinion that the presence of the unlighted truck and the position occupied by it could have been such an unexpected event that we cannot say as a matter of law that it should have been anticipated by appellants’ driver, therefore, the court should not have directed the verdict against the appellant.
In this action the Paynes first sued Ryan and Kirk, the meat company and its driver. Ryan then interpleaded Nichols,
Since this case must be retried, it becomes necessary to discuss the testimony of two witnesses. These witnesses were the state highway patrolmen who investigated the accident. Both testified to the length of skid marks left by the meat truck and gave opinion evidence as to its speed based upon their use of published skid-speed tables
Upon retrial of this action the court will be controlled in the admissibility of the highway troopers’ testimony by the rules herein set out.
. This was Kirk’s testimony. There was testimony by a state trooper that judging from the skid marks his speed was faster. This is discussed later in the opinion.
. We are dealing with skid-speed tables as distinguished from braking charts. This opinion is not to be construed either pro or con as to the admissibility of braking charts.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.