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Gauze v. Horn

December 19, 1952

GAUZE ET AL.
v.
HORN



Milliken

MILLIKEN, Justice. This is an appeal from a judgment awarding appellee, Ransom Horn, the sum of $779.40 for damage resulting to his automobile when it collided with a truck owned by Orville Gauze and operated by his son, Lawrence Gauze, both of whom are appellants herein.

The collision occurred on May 29, 1950, at about 3 p. m. on Highway 40 in the village of Beauty, Martin County, Kentucky. Immediately prior to the collision, appellee's car was parked at a filling station on the north side of the highway some distance back from the edge of the black top, headed in an easterly direction. The appellants' truck rounded a sharp curve just west of the filling station, proceeding easterly, when appellee started his car in the same direction. It is undisputed that the operator of the truck observed the car moving from its parked position when he was approximately 100 to 150 feet away. The appellee, upon entering the highway, slowly angled his car toward the right and proper lane. There is evidence that he proceeded about 20 feet before entering the right lane, but there is evidence to the contrary that he never reached the right lane.

The operator of the truck testified that as soon as appellee's car commenced to move from its parked position, he applied his brakes and moved to the extreme right side of the highway, to the extent that the right wheels of his truck got off the black top and onto the berm of the highway. He said that he blew his horn, but that appellee continued to drive on the left side of the highway and that he therefore thought that appellee was making room for him to pass to his right. He also said that there was a concrete culvert close to the edge of the black top immediately ahead and that therefore he had to get his truck back entirely on the black top; and that upon passing the appellee's car, it suddenly veered to the right, thereby causing the collision.

Appellee testified that he was angling to the right side of the highway in second gear and that he was not aware of the presence of the truck until after the accident. He further testified that the truck hit his car with tremendous impact.

The undisputed physical facts are that the steel body of the truck hooked the body of the car and turned it completely around in the highway, causing considerable damage to the car. The impact knocked the rear wheels of the truck out of line, disconnecting the gears and drive shaft, thereby causing the driver to lose control and run the truck into a ditch on the left side of the highway about 30 feet down the road from the point of collision.

Appellants urge two grounds for reversal, i. e.: (1) the appellee was guilty of contributory negligence as a matter of law because he violated certain statutory duties; and (2) the trial court admitted irrelevant and prejudicial testimony over the objection of the appellants.

The appellants' first contention is predicated on the following statutory duties, which appellants contend appellee admittedly violated:

(a) KRS 189.330(6):

'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on the highway.'

(b) KRS 189.440:

'No person shall start a vehicle that is stopped or parked unless and until the movement can be made with reasonable safety.'

(c) KRS 189.300(2):

'The operator of any vehicle moving slowly upon a highway shall keep his vehicle as closely as practicable to the right-hand boundary of the highway, allowing more swiftly moving vehicles reasonably free passage to the left.'

The appellee testified that he looked both ways before starting his vehicle and before entering the highway and that there was no approaching traffic; and that after entering the highway, he was attempting to move into the right lane. It was utterly impossible for him to enter the right lane of the highway at a 90 degree angle from the position where his car was parked on the north side of the highway. Since the ...


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