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Sweeney v. Schadler

December 5, 1952

SWEENEY ET AL.
v.
SCHADLER



Cullen

CULLEN, Commissioner. Elmer Schadler recovered judgment in the amount of $15,000 against Thomas Sweeney, for personal injuries sustained in an automobile accident. An attachment levied at the time the action was commenced, against real estate which Sweeney had conveyed to his wife on the day following the accident, was sustained by the judgment. The attachment was adjudged to be valid as against Mrs. Sweeney, and as against Arthur and Louise Beverly, who had purchased the real estate from Mrs. Sweeney after the attachment was levied. The lien of the attachment also was adjudged to have priority over a mortgage lien held by Edward Redmon, who had loaned money to the Beverlys. The judgment directed a sale of the attached real estate.

The Sweeneys, the Beverlys, and Redmon all appeal. They complain of the judgment both with respect to the adjudication of liability for damages and with respect to the sustaining of the attachment.

We will consider first the contention of the appellants that the court erred in overruling their motion for a directed verdict, and in directing a verdict for the plaintiff on the question of liability for damages.

The only witnesses to testify concerning the accident were the plaintiff Schadler, and a friend named Case who was a passenger in Schadler's automobile. We will state briefly their version of the accident.

Around 7:30 a. m. on March 27, 1945, Schadler and Case were driving in a southerly direction on an 18-foot concrete pavement, in Kenton County, Kentucky, on their way home after having worked all night at their jobs in a bakery in Cincinnati. The sun was shining brightly, and as the road made occasional turns in an easterly direction the automobile faced into the sun. The windshield of Schadler's car had dirt upon it, and moisture resulting from fog in low spots along the road, and when the sun struck the windshield it interfered with the vision of the driver and passenger. Case testified that he and Schadler 'talked about that sun being wicked,' and that Schadler was complaining about the sun bothering his vision.

When they reached a point on a long, sloping hill, Schadler brought the automobile to a stop, and got out with a rag to wipe off the windshield. Schadler maintains that at this particular point the automobile was not facing the sun, but Case's testimony was that 'we pulled up around the bend in the road, and the sun hit us again in the windshield and then we stopped.' There was room enough on the shoulder to have driven the car completely off the pavement, but according to Case the car was stopped with a substantial portion of it remaining on the pavement, the left wheels being halfway between the edge of the pavement and the black center line. Schadler wiped off the windshield, and then went around to the back to wipe off the rear window. He then observed Sweeney's car approaching several hundred feet to the rear, and he made a waiving motion with the rag to indicate to Sweeney that there was no traffic approaching from the other direction and it would be safe for Sweeney to go on past. Assuming that Sweeney had seen him, Schadler then turned his back to Sweeney's car and resumed wiping off the rear window. The next thing he knew Sweeney's car struck him, forcing him against the bumper of his own car and crushing his leg. Sweeney's car had almost been brought to a stop when it struck Schadler, because the collision did not move Schadler's car. Schadler fell on the pavement with his shoulders across the black center line.

Case testified that he asked Sweeney what happened, and Sweeney first said, 'I don't know,' and then said 'I never seen him.'

The plaintiff rested his case after presenting the above evidence, together with some evidence as to the nature and extent of his injuries. A motion of the defendants for a directed verdict was overruled. The defendants then rested their case and the court directed a verdict for the plaintiff, on the question of liability. The jury fixed the damages at $15,000.

The appellants contend that they were entitled to a directed verdict because the evidence shows that Schadler violated the statute in stopping his car on the highway. They further contend that in any event it was error to direct a verdict for the plaintiff. The appellee maintains that he did not violate the statute, and therefore was not guilty of any negligence.

As we view the case, the question of whether Schadler violated the statute relating to parking or stopping on the highway is not material. Had Schadler's car been completely off the highway and had he been standing on the pavement viewing the results of his handiwork with the rag, the situation would have been the same. The position of Schadler's car was not a cause of the accident. We think the real question in this case is whether Schadler was guilty of contributory negligence in failing to exercise ordinary care for his own, personal safety, as a person on foot upon the highway.

In 5 Am.Jur., Automobiles, sec. 442, p. 755, the following statement is made:

'A traveler engaged about an automobile in the highway is bound to use reasonable care for his own safety. The questions whether such care has been exercised, and whether one is guilty of contributory negligence, depend upon the facts in each case and are ordinarily questions of fact for the jury. * * *'

The statement is supported by a great variety of cases annotated in 25 A.L.R. 136, 34 A.L.R. 1515, and 61 A.L.R. 1164. Those cases hold almost uniformly that it is not contributory negligence as a matter of law for a motorist to stand upon the paved portion of the highway while engaged in making adjustments or repairs to his automobile, but that the question of his contributory negligence ordinarily is for the jury.

In Tate v. Hall, 247 Ky. 843, 57 S.W.2d 986, where a motorist standing in the highway for the purpose of changing a tire was struck by a vehicle approaching from the rear, this Court held that the question of whether the motorist ...


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