Baker v. Case Plumbing Manufacturing Co.

CLAY, Commissioner. In this motor vehicle collision case the trial court directed a verdict for the defendant at the conclusion of the opening statement made by the, attorney for the plaintiff appellant. The basis of the ruling was that appellant’s decedent was contribu-torily negligent as a matter of law. [259] The facts disclosed by the opening statement were that defendant’s tractor-trailer struck the automobile driven by the deceased after it had been driven out onto the highway from a parked position at a roadside fruit stand. The accident happened in the daytime, on a section of the highway which was straight for a distance of at least 1,000 feet in each direction from the point where the collision occurred. Appellant’s counsel stated that he would prove defendant’s tractor-trailer was traveling at a speed of up to 80 miles an hour, and that it skidded for a distance of 130 feet before striking the automobile (in which the driver lost his life), and that the automobile when struck was turning to the left and was in the left hand lane as the trailer approached. Counsel also stated that this was a residential area. The statute involved is KRS 189.330(7), which provides: “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.” It was the view of the trial judge that this statute imposed an absolute duty on the deceased to yield the right of way to defendant’s vehicle regardless of the speed of such vehicle, and regardless of any other circumstances. In support of this ruling the trial judge relied on Chambliss v. Lewis, Ky., 382 S.W.2d 207. That was an intersection case governed by a different statute, KRS 189.330(4), which requires a motorist to stop at the entrance of a through highway and yield the right of way to other vehicles which are approaching so closely “as to constitute an immediate hazard”. There the plaintiff driver had seen the approaching automobile driven by the defendant and had in effect tried to beat it across the intersection. Under those circumstances we held as a matter of law that defendant’s approaching vehicle was an immediate hazard known to the plaintiff, and that he “assumed the risk” in failing to yield the right of way. That case is somewhat inconsistent with Ramsey v. Deatherage, Ky., 342 S.W.2d 715, but in any event the ruling must be limited to the particular facts there involved. The statute which governs the case before us, KRS 189.330(7), has been held in a number of cases not to impose an absolute duty to yield. Siler v. Williford, Ky., 350 S.W.2d 704, and cases cited therein. The opening statement of plaintiff’s counsel did not detail all the circumstances involved in this tragic accident. We do not know (and may never know) whether the decedent driver looked in the direction of defendant’s approaching tractor-trailer. The distance and speed of that vehicle could possibly have been factors affecting his duty to yield. In addition, the position of the decedent’s automobile on the highway when struck may be most significant on the issues of negligence and proximate cause. It is to be remembered that in the opening statement plaintiff’s counsel stated that defendant’s vehicle had swerved into the wrong lane at the time of the collision. While this may not have been negligence in view of the emergency (cf. Webb Transfer Lines, Inc. v. Taylor, Ky., there could - be an issue concerning defendant driver’s negligence in failing to continue in his proper lane. This circumstance also raises a possible issue of last clear chance. Directed verdicts on an opening statement should be given only when counsel has made admissions that are fatal to his client’s case. Riley v. Hornbuckle, Ky., 366 S.W.2d 304. We do not believe the-statement that the decedent driver was struck by an approaching vehicle after he emerged from a private entrance onto a [260] through thoroughfare is an admission of contributory negligence as a matter of law. Jury issues may develop when the plaintiff has put on her proof. It is not suggested that a directed verdict for the defendant, after the introduction of evidence, would be unjustified. We simply do not know at this stage. We appreciate the position of the trial judge in terminating what appeared to be a useless trial, but on the particular opening statement before us, the directed verdict considerations were premature. The judgment is reversed, with directions to grant appellant a new trial. WILLIAMS, C. J., and MILLIKEN, OSBORNE, PALMORE, HILL and STEINFELD, JJ., concur. MONTGOMERY, J., dissenting.