Woosley v. Smith

GARDNER, Commissioner. Ruby Mudd Smith, appellee, was in her car on Highway 62 between Caneyville and Leitchfield when she was struck by a car driven by appellant, Eli Woosley, Jr. Mrs. Smith had stopped on the main traveled portion of the highway. She was planning to back up to a place where she could drive onto the shoulder of the road and there pick up a friend who frequently accompanied her to their place of employment. Two cars following her moved to the left-hand lane and passed. Woosley’s car, which was following the other two cars, instead of moving to the left-hand lane, continued in the right-hand lane and struck Mrs. Smith’s car in the right rear. Woosley’s car came to a stop with the right front part on the right shoulder of the road. In Mrs. Smith’s action for damages, judgment was entered on a jury verdict in her favor. Woosley’s counterclaim was dismissed. This appeal is from the judgment. Section 189.450(1) of the Kentucky Revised Statutes provides in part: “No person shall stop a vehicle, leave it standing or cause it to stop or to be [738] left standing upon the main traveled portion of a highway; * * 1 It is well settled in this jurisdiction that violation of a traffic statute is negligence per se, or negligence as a matter of law. Ross v. Jones, Ky., 316 S.W.2d 845 (1958); Saddler v. Parham, Ky., 249 S.W.2d 945 (1952). It must be conceded that appellee violated the above quoted statute when she stopped on the highway. To preclude recovery, however, her stopping on the highway must be a proximate cause of the accident. If reasonable minds can only conclude that a traffic violation is the cause of the accident, recovery will be denied the violator as a matter of law unless the last clear chance doctrine is applicable. If reasonable minds could differ on the question of causation, then the jury should determine the issue. If it is clear that the violation has no connection with the accident, the violation should not be considered in any way. These criteria are more fully explained in Ross v. Jones, Ky., 316 S.W.2d 845 (1958). The court is of the opinion that Mrs. Smith’s stopping on the highway under the circumstances outlined above was a direct and proximate cause of the accident as a matter of law. Therefore the trial court erred in submitting the question, of causation to the jury. We believe, however, the chancellor was correct in giving a last clear chance instruction. Mullins v. Bullens, Ky., 383 S.W.2d 130 (1964). On a retrial of the case, if the evidence is substantially the same as in the first trial, the trial court is directed to present instructions to the jury which would permit Mrs. Smith to recover only under the last clear chance doctrine and permit Woosley to recover on his counterclaim if not found contributorily negligent. Cf. Yates v. Wilson Bros. Trucking Co., Ky., 471 S.W.2d 744 (decided September 24, 1971). The judgment is reversed and this case is remanded for another trial consistent with this opinion. MILLIKEN, C. J., and EDWARD P. HILL, Jr., NEIKIRK, PALMORE and STEINFELD, JJ., concur. REED, J., concurs in result. OSBORNE, J., dissents. Footnotes [1] The statute sets fortli certain exceptions, none of which applies here.