APPEAL FROM ELLIOTT CIRCUIT COURT HONORABLE REBECCA K. PHILLIPS, JUDGE ACTION NO. 06-CI-00027
The opinion of the court was delivered by: Stumbo, Judge:
RENDERED: APRIL 5, 2013; 10:00 A.M.
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES.
Kim Carroll appeals from a Judgment of the Elliott Circuit Court reflecting a jury verdict in favor of Reuben J. Wright, Matthew Keeton d/b/a Matthew Keeton Trucking in Carroll's action alleging negligence resulting in a motor vehicle accident. Carroll contends that the trial court improperly failed to render a Directed Verdict in her favor, erred in failing to instruct the jury of the specific duty to drive in the right lane, and erred in allowing the Appellees to argue their driver faced an "unforeseeable situation" and did "the best he could" under the situation. For the reasons stated below, we reverse the Trial Verdict and Judgment, and remand the matter to the Elliott Circuit Court on the issue of damages.
Reuben J. Wright was an employee of Keeton Trucking. On the afternoon of September 27, 2005, Carroll was driving north on a two-lane roadway in Elliott County. Wright, who was driving a tractor-trailer owned by Keeton Trucking, was heading south. Wright approached a curve to the right, past which was an intersection. At the intersection, which apparently could not be seen before the curve, one southbound vehicle was stopped as the driver was waiting to turn left.
A second driver in another vehicle had stopped behind that vehicle. When Wright rounded the curve and saw the two vehicles stopped at the intersection, he slammed on his brakes and steered to the right to avoid hitting the stopped vehicles. The brakes on Wright's vehicle locked, leaving one hundred feet of skid marks. Although he avoided a collision with the vehicles in the southbound lane, his trailer swung into the northbound lane where it struck Carroll's northbound vehicle. Carroll sustained serious injuries to her legs in the accident.
Carroll filed the instant action against Wright and Keeton Trucking alleging the negligent maintenance and operation of the truck proximately caused the accident and resultant injuries. A jury trial was conducted on December 4, 2007, at the conclusion of which the jury was instructed on the "sudden emergency doctrine".*fn1 The jury then returned a verdict in favor of Wright and Keeton Trucking.
Carroll appealed to a panel of this Court, where she argued that the
sudden emergency doctrine was not applicable to the facts.*fn2
Wright and Keeton Trucking (hereinafter referred to
collectively as "Wright") argued that the issue was not preserved
because, although Carroll moved for a directed verdict, she failed to
make any post-verdict motions to set aside the verdict, for a new
trial or for a judgment notwithstanding the verdict.
In an Opinion rendered on February 20, 2009, a panel of this Court concluded that 1) Carroll was not entitled to a Directed Verdict, and 2) the trial court's application of the sudden emergency doctrine was improper because the purported sudden emergency herein, i.e., cars stopped at an intersection, was not an emergency which Wright could not have anticipated. The Judgment was reversed and the matter remanded.
A second trial was conducted beginning on October 18, 2011, where Wright argued that the accident was created by an unforeseen circumstance during which he did the best he could to avoid striking the vehicles stopped at the intersection. At the conclusion of the trial, the court denied Carroll's request for an instruction that Wright had a duty to drive in the right lane. The jury returned a verdict in favor of Wright upon concluding that he did not fail to comply with the duty to keep his tractor-trailer under reasonable control, operate it at a reasonable speed not exceeding 55 miles per hour, keep a lookout ahead, obey traffic control devices and exercise ordinary care to avoid a collision. This appeal followed.
Carroll first argues that the trial court erred in failing to sustain her Motion for a Directed Verdict. She notes that it is undisputed that Wright was operating the tractor-trailer and that it crossed the center line, proximately resulting in her injuries. She directs our attention to a wealth of case law holding that a motorist's presence on the wrong side of the road at the time of a collision constitutes prima facie evidence of negligence, see e.g., Mulberry v. Howard, 457 S.W.2d 827, 829 (Ky. 1970), and that court's have "no hesitancy" directing a verdict in favor of the plaintiff under these circumstances. Davis v. Kunkle, 302 Ky. 258, 194 S.W.2d 513 (1946). The focus of her argument on this issue is that Wright had statutory and common law duties to operate the tractor-trailer in his lane and in a prudent and safe manner, that the uncontradicted evidence - including Wright's own testimony - was that he lost control of the trailer and slid into oncoming traffic, and that she was entitled to a directed verdict as to liability. In response, Wright maintains that "no ...