*1 578 694, manslaughter
43 S.W.2d rеversed a re- solely conviction court’s separation fusal rule. apply See Commonwealth, Ky. 425. Salisbury v. 79 purpose rule elicit is to truth, promote the unveil the false justice. ends of It may witness testified each but, truthfully in this case because nature action because this peculiar relationship between these existing Frankfort, appellant. Stewart, Zeb persons in witnesses and interested prosecution, opinion the Court is of Gen., Atty. V. Earle M. Ferguson, Jo refusing trial court erred in Atty. appellеe. Powell, Gen., for Asst. apply separation. that rea- rule For son the is reversed. BIRD, Judge. in
Appellant convicted of murder Eddyville and Lyon Circuit Court by jury penalty death given the County. charged with He
Caldwell prison guard Davenport, a of Owen
slaying Ap- Eddyville. Penitentiary in at the State al., GREYHOUND CORPORATION et pellant prisoner at the time awas Appellants, in the Davenport duty onwas killing and prison yard. v. White, suing by WHITE Barbara and Lillian presented for grounds Divers friend, her Barbara mother next only necessary consider
reversal. It White, Appellees. questions are re- Decisions all one. case eyewitnesses this All served. White, WHITE in- and Lillian Barbara peniten- confined the are felons and were fant, suing by mother her next appel- killing. The the time of tiary at friend, Appellants, Barbara witnesses as rule lant moved for v. motion 43.09. Thе provided by CR al., Appellees. permitted Francis WHITE et were the witnesses overruled By the court room. in the remain Appeals Kentucky. Court of permitted hear they ruling court’s 12, Dec. 1958. appellant contends testify and each other Rehearing May 22, error. Denied 1959. reversible this is that trial courts Court holds This rule applying broad discretion separation of witnesses
respecting except in such matters to intervene
refuses discretion has been where that in cases 128, Com., 3 Ky. v. Moore abused. Ky. 107, 190; Com., 308 v. Pool S.W.2d Com., 603; Ky., 281 v. S.W.2d Jones ac the homicide However S.W.2d.920. Cоmmonwealth, Ky. Ray tion *2 Stoll, Park, Lexington, & E. Keenon J.
Wise, Elizabethtown, appellant Grey- for Corporation hound al. et Lewis, Hatcher, Paul M. Elizabeth- T. J. town, appellees for Lil- White and Barbara suing by her next lian White Mother and friend, Barbara White.
Woodward, Fulton, Louisville, & Hobson Faurest, Hubbard, Jr., L. Robert N. A. Huddleston, Elizabethtown, Harold pellees Francis White et al.
CULLEN, Commissioner.
As
result of a collision involving
school-bus
the Hardin
Education,
County Board of
and an automo-
by
bile driven
Francis E.
the wife
injured.
or 75
about 120
feet back and
of White
daughter
and infant
preparations
back. The driver then
Corporation
made
They sued the
changing
the tire.
*3
driver,
the school
and
its bus
a
made
was
also
White
driver. Mr.
bus
standing
Greyhound
The
bus had been
trial,
Upon the
suit.
his wife’s
defendant in
the
about
of
20
a
bus
minutes when
the
in favor of
a verdict
directed
the court
County
Hardin
Bоard
Education
jury
driver,
the
and
and its
school board
proached
proceeding south
from the north
White
Mr.
favor of
a verdict
returned
was a
Greyhound
as
had
There
the
been.
and
Corporation
Greyhound
against
but
the
east)
farm
the
dwelling
(on
the
across
road
to
damages
$15,000
driver, awarding
its
had
point
Greyhound
from
where
the
the
daughter.
$10,000 to the
Mrs. White and
stopped,
the
leading to
walkway
and the
accordingly.
entered
Judgment was
distance
door
dwelling
of the
was a short
driv-
There
Greyhound.
its
and
north of
rear of the
Corporation
the
Greyhound
The
waiting
maintaining
dwelling,
children at this
appealed,
er have
judg-
bus,
the
and for
the
and the driver of
verdict
motions for a directed
children,
bus,
pulled
pick up
should
verdict
in order to
the
notwithstanding the
ment
her
and
lane
(еast)
White
school bus into the
traffic
Mrs.
have been sustained.
left
stopped
opposite the
both contend-
and
lane
appealed,
about
daughter also have
ver-
walkway
At the
leading
dwelling.
a
to
erred
ing that
point
stopped,
and
thе dis-
where the school
bus
favor of the
dict in
further
tance
to
contending
front of
bus
driver,
from the
the school
and Mrs. White
Greyhound
matter
negligent as a
rear of the
somewhere
was
that her
was
husband
a directed
between 34 feet and 80
One witness
feet.
and
of law
there should
feet,
feet,
said
51
it was 34
one
was
against
said it
him.
verdict
around
another estimated
it
accident
of the
A statement of
facts
feet.
necessary.
is
A
stop-
few seconds after
proceeding south
The
ped,
automobile,
coming
the White
31-W around 7:00
No.
Highway
on U. S.
north,
from the
struck
right
rear corner
tire
3,1956. The
front
a. m. on October
proceeded
the school bus
then
on and
flat,
slowing
and after
of the bus went
across the road and struck
left rear cor-
500 feet
gradually
for a distance
Greyhound.
ner
applied
of the
White had
off the
on
road
the driver
his brakes around 150
back of
feet
brought
to
(west)
it
shoulder
skid,
school bus but
went into a
only
stop.
about
extended
The shoulder
it
skidding
when it struck the two buses.
pavement
to
edge of
six feet from the
widе,
ditch,
eight
so
will state further
bus was
feet
We
details in connec-
possible,
por-
tion with
pulling
far as
our discussion
after
over
of the various con-
pave-
parties.
on the
remained
tentions of
tion of
bus still
The
left front
ment.
evidence was
Greyhound Corрoration
The
and its driv-
inches,
feet,
and the left
wheel was
ten
three
er
maintain first that the
feet,
edge
rear wheel
two
from the
about
negligent,
second,
was not
if
that even
pavement.
negligent
he
negligence
not a
point
stopped
At the
whеre the
Negli-
wide,
pavement
road
sought
was 20
and the
to be
him
attributed to
straight,
view,
that there
ground
with unobstructed
awas wide
strip
distance of
mile in each
along
highway,
one-half
direction.
the east side of the
point
stopped, upon
stop-
It had bеen
he
raining, and after
where
which
ped
put
it
the bus
to
again.
to rain
could have driven
so as
remove
started
The driver
pavement.
entirely
two
out
flares
it
from
behind
one about
relating
stopping
vehicles
to
intervening
The statute
determine is: ‘Was suсh
pro-
189.450(1)(a),
highway,
KRS
superseding
cause of
stopping
prohibition against
that the
vides
accident?’
primarily
portion
highway
on the main
traveled
one
original
If the
negligent
fact.
apply
does not
act set
vehicle
has
force a chain of events which
disabled “in such a
and to such
original
manner
might have
actor
impossible
oc-
extent that
avoid the
it
reasonably
would, according
foreseen
cupation
portion
or im-
experience
main traveled
to the
mankind,
lead
рracticable
highway
remove
*4
the event
happened,
which
original
the
repairs
until
or sufficient
have been made
actor is
liability by
not relieved of
the
help obtained for its removal.”
If, however,
intervening act.
the ulti-
mate injury
by
brought
about
an in-
testimony
Greyhound
tervening act or force so unusual as not
was,
driver
for a
of reasons
that
number
foreseeable,
to have
reasonably
been
by him,
impracticable,
stated
sub
the
act
the
intervening
is considered as
Grey
stantially impossible,
the
to move
superseding
original
cause and the
hound across the road
the
actor is not liable.”
strip. However,
with
another witness
(254
728, 730)
Also
experience
operation
S.W.2d
:
in
buses testi
of
fied that the bus
have
driven onto
could
us,
“In the case before
thе street was
difficulty.
gravel strip
great
with no
twenty-one
highest
wide. The
feet
evidence,
Under the
reasonable
we think
given
estimate
as to
distance
might
minds
as
it was im
differ
to whether
parked
protruded
car
into the street
practicable
high
to move the bus from
distance, together
was three
This
feet.
way,
question
negli
and therefore the
of
snow,
with the
banked
remain-
Greyhound
properly
driver
der
the street unobstructed for a
jury.
v.
See Banner Transfer Co.
width of
and one-half to seven-
sixteen
380;
Morse, Ky.,
274 S.W.2d
Ashton
ample
teen feet. This
afforded
distance
Roop, Ky.,
“Admittedly materially obstruct, case before if completely not block, driver act of the of the third negligent highway, was so unusual and appellee forcing off the extraоrdinary street as not have been reason- parking by between the Greyhound driver) intervened ably foreseeable injury pellants’ car and the ultimate and therefore it a superseding constituted question appellee’struck. The relieving have drivеr of back, ordinarily Cor- some ISO which would liability. Accordingly, the provided distance stopping entitled safe are poration driver its car, for the White inclined we would be notwithstanding verdict. negli- hold that the school bus driver contention We next consider gent as matter hold of law. We do appeal, plaintiffs, on two verdict trial erred court jury. driver was for the driver. hoard and for the not bus from is no way. their vehicles “in [*] regard for everyone to exercise injure other fact that there 189.290, [*] view that there is [*] specific Hоwever, Apparently, considered requiring other stopping people. statute a common vehicles safety is a this all motorists a anywhere careful general ordinary care not prohibiting view and upon law convenience overlooks because manner, with statute, KRS duty upon to highway,” a school operate was of could high there dence to turn into the left the further traveling around SO miles traveling 25 miles it off the highway, so about 300 feet assumed it was appears recognized nеgligent Mrs. some S00 feet behind it. He lane. He then per ahead of him in the that contention as a matter of law. The hour. When he of the school it as a the school going observed the school on her he continued lane, saw to make that her husbаnd and he bus per bus, appeal, makes got hour, it started when he at first within going lane, turn *5 was evi and time, bus for the first around 300 stopped in the Here, the school ahead of him. He then that it, concluded lane, completely blocking left traffic pass Grey going school partially right lane point where hound, so turned he into the left lane Greyhound. rain It was by the obstructed follow the school bus. He was about slippery. White the road was ing and feet behind the school bus it when came from approaching рlainly visible car was stop. applied brakes, to a He then his school bus (although the rear according testimony ordinarily his it). did not see looked and says that he stop would to- within able strip along There was feet, distance of but because of upon highway which the of the edge east skid, pavement wet car went into for easily have off could .his school bus with the result that he struck both up the children. purpose picking Greyhound. school bus rea we think these circumstances Under very could cоnclude well sonable' minds In view of the that the school bus fact operate did not bus driver school stopped position in an unusual the high- regard manner with a careful bus in way, when there was basis fact, In safety of motorists. for the White’s belief that the school bus had for the fact that other motor not were it simply pur- entered the left lane for the pass stopped permitted to not ists are pose passing Greyhound, and in 189.370, and the school KRS fact of the further effect view possibly might have driver therefоre upon pavement might the wet have any motor assuming justified in White’s unknown control of rear have would from the approaching ist quantity, believe it cannot be held that control as such under vehicle a matter of law. White of whenever and stop. regardless able to stop; errors of might Since.the wherever of the directing a verdict in favor that when fact not driver, and in and its not car was stopped, the White a verdict Cor- in favor of the
poration driver, might well n jury’s that White decision influenced negligent, that the ends not we feel
justice require negli- issues of and of bus driver damages, should issue of
be resubmitted a new trial. pass upon
We do not damages, raised on
excessiveness of the
Greyhound’s appeal. Greyhound Corpo- appeal
On the judgment
ration re- and its driver the
versed, enter with directions to notwithstanding favor the verdict. appeals plaintiffs judg-
On reversed,
ment with directions for opinion.
a new trial in with this accordance
EBLEN, J., *6 holding dissents driver’s not a CHIQUELIN, Appellant,
Ernestine LINKER, Appellee. Harry
S. Appeals Kentucky.
Court of
Jan. 1959. May 22,
Rehearing Denied 1959.