MOREMEN, Judge. Appellant, Hugh P. Ashton, filed a petition in the circuit court by which he sought to recover damages resulting from alleged negligence of appellee, J. M. Roop, in the operation of a motor vehicle. Appellee filed an answer and counterclaim which contained (1) a traverse; (2) a plea of contributory negligence; and (3) a counterclaim for property damages alleged to have been sustained by him. Upon the trial of the case, the jury refused to award damages to either party, and in this appeal from a judgment entered on the verdict, appellant assigns as reversible errors that: (1) appellant was entitled to a verdict under the evidence offered; (2) appellee was guilty of negligence per se and as a matter of law; (3) the negligence of appellee was the proximate cause of the collision; (4) the verdict of the jury was contrary to the law and evidence; (5) the court erred in refusing to give an instruction offered by appellant; and (6) the instructions given by the court of were erroneous.
At about 7:30 p. m. on April 23, 1949, appellant, with his wife and child and two other children, was driving on highway 62 from Central City in the direction of Rockport when the lights of his car either went out completely or became so dim that he could not see the road plainly. The road at this place had a black top surface 20 feet in width with a shoulder on each side approximately 5 to 7 1/2 feet in width. Appellant stopped the car, his passengers got out, and he reached under the dash and attempted to correct the condition of the lights. While he was so engaged, Mr. Peveler, who was driving a truck in the opposite direction, momentarily stopped and inquired if he could be of any assistance and, upon being told that he could not, drove on. At this time, and after Peveler had drawn away, a car driven by appellant Roop, who was traveling in the same direction as appellant, came around a curve and approached the scene of the accident. Roop was temporarily blinded by the lights of Peveler's truck and, when he came out of their glare, he was about 60 feet from appellant's parked car, which he attempted to avoid by swerving to the left. The right front bumper and fender of his car struck the left rear fender and wheel of the Ashton car a glancing blow, which knocked the car about 6 to 10 feet up the road. Roop ran into a ditch on the left side of the road.
The position of Ashton's car immediately before the collision is in dispute. Appellant, and his wife, testified that he had driven both right wheels off the black top surface before he parked his car and commenced to repair it. Roop testified that the car was entirely on the black top before he struck it, and was only a few feet on the shoulder after he struck it. Earl and Celestine Peveler, the only disinterested eyewitnesses, testified that the car was parked on the surfaced portion of the road -- about a foot and a half to the right of the center line. A State Trooper, who arrived at the scene of the accident shortly after it occurred, stated that Ashton's car was on the right hand side of the traveled surface of the road.
There was also a controversy concerning the speed of the Roop car. Mrs. Ashton testified, 'He was coming at an awful reckless speed. I couldn't tell, exactly, he was coming so fast I was afraid to try'; and that he did not slacken his speed until he hit appellant's automobile. Roop stated that he was driving at a rate of 30 to 40 miles per hour. Mr. Peveler refused to estimate his rate of speed, but stated Roop 'wasn't running too fast.'
Appellant first argues that under the terms of KRS 189.450(1), which reads: 'No person shall stop a vehicle, leave it standing or cause or permit it to stop or to be left standing upon the main traveled portion of a highway that is not a city street for the purpose of making repairs on it. This subsection shall not apply to a vehicle that has been disabled while on the main traveled portion of such a highway in such a manner and to such extent that it is impossible to avoid the occupation of the main traveled portion or impractical to remove it from the highway until repairs have been made or sufficient help obtained for its removal', he had an absolute right to repair his car while it was parked on the highway because he was charged with the duty, under the law, to stop and to drive no further with defective lights. It is true that the exception in the above statute removes the force of its mandate in cases where it is impossible to avoid the occupation of the road, but in the case at bar there was a serious question of fact concerning whether it was necessary for Ashton's car to occupy the road at all. Ashton stated, 'The black-top is twenty (20) feet wide, and on this right-hand side that I was on, the shoulder was 7 1/2 feet, and on the left shoulder it was five (5).' He also testified:
'Q. 21. How far did you travel with your lights dim as you say? A. Well, I just pulled over on the shoulder, I would say maybe twenty-five or thirty feet.
'Q. 22. I will ask you in your deposition if you didn't say you had travelled some hundred feet when you started pulling over? A. I might.
'Q. 23. Well, did you, or didn't you, say that? A. I guess I did.'
Under this evidence, a question is presented concerning whether appellant was negligent in his failure to drive his car a few more feet and remove it entirely from the road and out of the stream of traffic, and whether or not the car was so disabled that it was impossible to avoid the occupation of the road. These questions were properly addressed to the jury.
Under the second, third, and fourth assigned errors, appellant argues that when appellee was blinded momentarily by the light from the truck, he gave no signal, and continued at a speed of 40 miles per hour; that this action constituted negligence per se and as a matter of law was the proximate cause of the collision and, therefore, the verdict of the jury was contrary to the law and evidence. This argument assumes, first, that appellant, himself, was without fault, and then reliance is placed upon the case of Lexington-Hazard Express Co. v. Umberger, 243 Ky. 419, 48 S.W.2d 1066, wherein it was held that a motorist blinded by lights while rounding a curve, who did not take immediate precautions to avoid a collision with a parked car, was guilty of contributory negligence as a matter of law. We are, therefore, faced with the question of whether the rule announced in that case is correct.
The language used in the Lexington-Hazard Express Co. v. Umberger case was broad in scope. It has been necessary for this court, on a number of occasions, to distinguish it from other cases on the basis that there existed some difference in facts between them. Again, we have applied its rule without comment and without distinction. In order to recognize this dichotomy, we are compelled to review a few of the cases, and laboriously set forth facts and rulings of law.
In the case of Bradley et al. v. Clarke, 1927, 219 Ky. 438, 293 S.W. 1082, these were the facts: Appellant parked his truck, with lights burning, in the road while he walked back to repair a stalled car. Appellee, driving in the opposite direction, saw the truck's lights, passed on the right side of the road, and struck the stalled car. It is difficult to determine from the opinion the true position of the various cars involved, but there was conflict in the evidence as to whether the truck was on the left-hand side of the road and whether appellee slackened the speed of his car when he saw the lights. The court held that appellee was not guilty of contributory negligence as a matter of law, and indicated that if appellee had known the truck was stopped, he might have been guilty of contributory negligence as a matter of law.
In the case of Lexington-Hazard Express Co. v. Umberger, 1932, cited above, McLane, while driving an automobile northwardly at night, sustained a mishap to his car. The car was disabled and left at an angle across the road. The road at this point curved sharply. Appellant's truck, also proceeding northwardly, was blocked by McLane's automobile. The truck was stopped on its right-hand side of the road, but there was a dispute as to how far to the right it was stopped. The truck's taillight was burning. An automobile going south driven by B. C. Barton passed the truck with difficulty and continued on. As Barton rounded the curve southwardly of where the truck and McLane's car were stopped, the appellee, Gamble, driving the automobile of appellee, Umberger, passed him. Gamble, who was driving about 25 miles per hour, was blinded momentarily by the lights from Barton's car and, before his vision cleared, he was too close to the truck to avoid a collision. We held that appellee, Gamble, was under duty to slacken the speed of his car after being blinded by oncoming lights and that by his failure to do so, he was guilty of contributory negligence as a matter of law.
In the case of Roederer's Adm'x v. Gray, 1934, 253 Ky. 669, 69 S.W.2d 998, an unlighted wagon driven by decedent was struck from the rear by an automobile driven by appellee. The incident occurred at night on a slight curve in a city street. Appellee contended that due to the curve his lights were deflected to such an extent he was unable to see the wagon until he was 10 or 15 feet away. Appellant offered evidence showing that the curve was so slight that the wagon should have been visible from 250 feet. It was held that this state of fact presented a ...