Johnny Parker's automobile, headed west on a two-lane highway at night, ran into the back of Christine Melton's automobile which, with a flat tire, was stopped in the west-bound traffic lane. The force of the collision impelled the Melton car forward some 12 feet into the front of the car of Alton Redden, which was stopped, facing east, in the west-bound lane. Redden, who had been engaged in fixing the tire on the Melton car, was caught between his car and the Melton car and sustained serious injuries. Mrs. Melton suffered some personal injuries and her car was damaged slightly. Parker's car also incurred minor damage.
Redden sued Parker, who then filed a third-party complaint against Mrs. Melton, seeking contribution or indemnity with respect to any recovery that Redden might obtain against him. Mrs. Melton counterclaimed against Parker for her damages, and he in turn counterclaimed against her for his damages.
The trial court dismissed the third-party complaint for contribution or indemnity, on the ground that Mrs. Melton owed no duty to Redden. The rest of the issues were submitted to the jury. The verdict awarded $25,000 to Redden against Parker, and nothing to Mrs. Melton or Parker on their claims against each other, finding both of them negligent. Judgment was entered accordingly. Parker has appealed and Mrs. Melton has cross-appealed.
We shall first consider Parker's contention that he was entitled to a directed verdict on Redden's claim against him, on the grounds that (1) Redden was contributorily negligent as a matter of law and (2) Parker was as a matter of law not negligent. A brief statement of the facts is necessary.
Mrs. Melton, headed west on the two-lane country road, with several children in her car, around 7:15 p.m. on a day in late April, experienced a flat tire on the left front wheel of her car. She was on a rise from a dip in the road and she proceeded about the length of a city block to the top of the rise, where she brought the car to a stop either entirely or mainly in the west-bound traffic lane (her evidence was that her right wheels were off the pavement, leaving about four feet between the left side of her car and the center line). She testified that there was not room on the shoulder to enable her to pull her car completely off the road. There was a driveway directly across the road from the point where she stopped, but she said she did not see it; also that she had encountered difficulty in steering the car with the flat tire. There was a side road leading off to the right some 50 to 75 feet ahead of her but she said she did not see it or know of it.
Within a few moments Redden came along in his car, from the east, with his wife as a passenger. He stopped and upon being advised of the trouble offered to fix the tire. His wife proceeded on an errand with their car, and he commenced to work on the tire. Mrs. Melton had no jack in her car so he was able only to take off the hub cap and loosen the lugs. However, in a short time Mrs. Redden returned with their car, in which there was a jack. By this time it was dark, so Redden directed his wife to park their car in the west-bound lane, headed east, some 12 feet from the front of the Melton car, so the Redden car's headlights would furnish light to enable completion of the tire-changing operation. Mrs. Melton testified that the Redden car was so parked that its right headlight was six inches closer to the center line than was the left side of her car, thus making the headlight visible from the rear of her car. Redden remarked to Mrs. Melton that the situation was "dangerous" and he directed her to "flag traffic," but she remained in the area in front of her car and did not go down the road some distance behind her car where flagging might have been expected to do some good. Redden was aware that she was continuing to remain in front of her car.
Redden had completed the tire change and was lowering the jack when Parker, coming from the east (behind the Melton car), applied the brakes on his car and it commenced to slide straight ahead in the west-bound lane, toward the Melton car. Mrs. Melton screamed and Redden jumped up, ran towards his car and attempted to climb up on the hood. However, he was a fraction of a second too slow and his leg was caught against the bumper of his car when the Melton car was impelled into it by the impact from the Parker car. Mrs. Melton testified that she was bumped to one side by her car.
Parker's argument that as a matter of law Redden was contributorily negligent, or assumed the risk, rests strongly on Mullins v. Bullens, Ky., 383 S.W.2d 130. There the decedent and several of his companions were standing behind their car stopped on the highway at night, with their backs to traffic, and with their senses perhaps a little dulled with beer, undertaking to put the detached hood of their car into the trunk. The decedent was struck by a car coming from the rear. We held that the decedent was contributorily negligent as a matter of law in standing on the highway "in an obviously perilous place, under the conditions at bar."
Parker also relies upon Carlisle v. Reeves, Ky., 294 S.W.2d 74. In that case the plaintiff stood on a heavily travelled city street, on a dark, rainy night, behind a truck standing in the street with no lights, with his back to traffic, writing down the license number of the truck. He was struck by a car coming from behind. We held that the plaintiff had as a matter of law assumed the risk (more about that later in this opinion).
Redden, maintaining that the issue of his contributory negligence or assumption of risk properly was submitted to the jury, cites Sweeney v. Schadler, Ky., 259 S.W.2d 680. There the plaintiff was standing behind his car, stopped on the highway in broad daylight, wiping off the rear window of his car. He saw the defendant's car approaching from the rear and waved to indicate that it was safe to pass on the left. He then turned his back and resumed wiping the window. He was struck by the oncoming car whose driver had not seen him. We held that the question of whether the plaintiff had exercised ordinary care was for the jury, and we cited authority for the proposition that ordinarily the question of whether a traveler "engaged about an automobile in the highway" has exercised reasonable care for his own safety is a jury question.
Redden relies also upon Tate v. Hall, 247 Ky. 843, 57 S.W.2d 986, where the plaintiff, undertaking to change the left rear tire on a truck, at night, was struck by a car coming from the rear. The truck had no lights but the plaintiff and his companion had a flashlight directed at the rear of the truck which this court said "was sufficient to create a signal to one approaching from the rear." Also, the evidence was that the truck was almost entirely off the road and the plaintiff was standing only two or three feet from the edge of the pavement. This court held that the question of contributory negligence was for the jury.
Obviously the facts in each of the foregoing cases differ in one or more respects from those in the instant case, and perhaps the differences could be seized upon as constituting material distinctions. Before undertaking to evaluate the distinctions, however, we deem it necessary for us to face up to these problems: (1) Is there a difference between assumption of risk and contributory negligence in the kind of situation here presented? (2) If so, are there two kinds of assumption of risk? (3) Which of the various doctrines properly should be applied?
We are disposed to accept Prosser's analysis of these problems, with which the Restatement is substantially in accord. Our references are from Prosser, Law of Torts, Hornbook Series, Third ed., sec. 67, pp. 450 to 469; and Restatement of the Law, Second, Torts, sec. 466 and secs. 496A to 496G.
As applies to the type of situation here involved, Prosser describes the pure assumption of risk doctrine accepted and applied by a number of jurisdictions, which bars recovery by the plaintiff who, aware of a risk already created by the negligence of the defendant, proceeds voluntarily to encounter it. Cf. Restatement, Second, Torts, secs. 496A, 496D. The bar is operative without regard to whether the plaintiff's conduct was reasonable. The theory appears to be that the plaintiff's acceptance of the risk has wiped out the defendant's duty, and as to the plaintiff the defendant's negligent conduct is not a legal wrong.
A second, qualified, doctrine, closer in theory to contributory negligence but still predominantly an assumption of risk doctrine in the barring effect it has, requires that the plaintiff's exposure of himself to the risk be unreasonable, or stated another way, that the risk be unreasonable. Cf. Restatement, Second, Torts, sec. 466. This involves the reasonable man test of contributory negligence but the doctrine differs from contributory negligence in that it may bar the plaintiff where contributory negligence would not, such as in a case where the defendant is grossly negligent. It may even operate as a bar where the defendant had a last clear chance; see Gover v. Central Vermont R. Co., 96 Vt. 208, 118 A. 874.
Plain contributory negligence, therefore, may have less of a barring effect than does qualified assumption of risk. Also, it does not place emphasis upon, or give any special weight to, the ...