APPEAL FROM MUHLENBERG CIRCUIT COURT; Hon. A. J. Bratcher, Judge
Opinion OF THE COURT BY COMMISSIONER CULLEN
In an action for personal injuries, brought by Judson Saddler, a pedestrian, against Harold Parham, a motorist, the court directed a verdict for the defendant, at the close of the plaintiff's evidence, on the theory that the plaintiff was guilty of contributory negligence as a matter of law. On appeal, Saddler contends that the case should have been submitted to the jury, both on the question of contributory negligence and on the question of last clear chance.
Saddler, age 22, lived with his parents and two brothers in a house on the east side of Highway 181, approximately 200 feet south of the city limits of Greeville. From the Saddler home to the city limits Highway 181 slopes downward, and then rises from the city limits to the first intersecting street in Greenville, a distance of some 500 feet. The highway has a black top surface.
On the evening of November 22, 1949, after dark, Saddler and his two brothers, ages 17 and 15, left their home to go to a movie in Greenville. They stepped upon the surface of the highway and proceeded to walk down the right hand lane of the highway, three abreast, towards Greenville. They admitted that they were talking and laughing, and "having a good time," as they walked, and were paying no attention to traffic behind them. They further admitted that they knew they were required be law to walk on the left side of the highways, and that there were signs near the city limits directing pedestrians to walk on the left side. Although a colored boy, standing on the other side of the highway, testified that the lights of Parham's car shown on the Saddler boys from a distance of 500 feet away, they said they did not become aware of the approach of the Parham car before it struck them.
The Parham car, traveling towards Greenville, struck the Saddler boys at a point about 100 feet inside the city limits. At the time of the impact, Judson Saddler was on the highway about four feet from the right edge of the pavement, and his two brothers were on the pavement immediately to his right. Judson was hit by the front center of the Parham car, and his brothers were struck by the right side of the car. Judson was carried or thrown a distance of some 91 feet and was severely injured. Skid marks of the automobile commenced 20 feet south of the point of impact and extended for a distance of 114 feet.
Parham testified that he was driving 35 or 40 miles per hour; that as he neared the city limits a vehicle passed him, going in the opposite direction, and he was temporarily blinded by its lights; that he did not see the Saddler boys until he was within 15 or 20 feet of them; and that he immediately applied his brakes and attempted to swerve to the left to avoid them. One of the Saddler boys agreed that a car had passed them, going south, immediately before the accident, but the other two Saddler boys, and the colored boy across the road, denied that there was any such car.
The colored boy estimated that the Parham car was going "about 60 miles an hour, rough estimation." This was based upon his observation of the car as it came towards him, from the time he first observed the lights a distance of 500 feet away until the car struck the Saddler boys.
It is admitted that Parham at no time sounded is horn.
The only conflict in testimony is with respect to the speed of the Parham car and the presence or absence of a car going in the opposite direction immediately before the accident.
There is some contention by the appellant that KRS 189.570 (6), which requires pedestrians to walk on the left side of the "highway," does not apply to streets within the limits of a city. This contention cannot be upheld, because KRS 189.010 defines "highway" to include a street.
Before undertaking to answer the specific questions raised on this appeal, it may serve a useful purpose to review briefly some of the basic rules that are designed to control the ...