*1 MACKEY, L. Edward Adm’r Estate Deceased, Gregory Burkhead, Appellant, al., Appellees.
Homer SPRADLIN et Appeals Kentucky.
Court
July 2, 1965. Rehearing
Modified on Denial Dee. *2 Burkhead,
cluding 7-year Gregory who old lived across the street south of and almost directly opposite place where the ice standing. wagon cream As he at- tempted street to re-cross the homeward Gregory bound with his ice cream cone passing dump collided with a truck and was killed. Gregory’s administrator of estate
brought wrongful this suit for death respective operators and owners of the ice wagon cream and the truck and appeals from judgment pursuant entered to a verdict directed in favor all the defendants at plaintiff’s conclusion evidence.
Knopp a dead-end lead- Avenue is street ing Lane, eastwardly from Grade outside city limits lined of Louisville. It houses, interspersed on both sides small building, grocery. at least one store portion main traveled the street asphalt consists of an surface a little under wide, feet bordered on each side narrow shoulder and then a ditch. There are no sidewalks. Mail boxes and news- paper delivery up tubes are and scattered way down the on the shoulders between the pavement and the ditches. traveled down wagon had
"The ice cream around, Avenue, turned Knopp to the end westwardly toward Grade back started Watts, Roberts, Richard P. Luther M. way. stops Lane, along making several Louisville, appellant. for lights flashing and a equipped It with O’Mara, Louisville, Spradlin G. pic- decorated with ringing bell and was John & Mullins. and two sundaes and milk shakes tures of cones. It was lights shaped like ice cream Joseph Stopher, Boehl, Stopher, E. vehicle, nine inches large box-like feet six Deindoerfer, Louisville, & Graves for Mr. long. wide, feet eight high, feet and 17 over Louisville, Softee of Sinkhorn & Simmons. aboard, driv- Two were Simmons Sink- the wares. ing selling Sinkhorn PALMORE, Judge. charge. horn inwas April 27, 1961, Burkhead At P.M. on about 5 :45 There were six children stopped on brother family. Gregory, youngest, cream dispensing ice Avenue, Robert, 12, others Knopp a 2-lane street or more of the north side and one playing ball. neighborhood in a residential of suburban were in back of their home sister, Louisville, Sue, 13, ice inside purpose selling older for the Linda like. At once a her school work. When studying cones around, ice cream gathered children in- heard the bells of the number of approached They Linda for some ask Mullins whether Sue her mother der. did not money buy Gregory’s an ice cream Robert sounded his horn. cone and had spring purpose. top lying came into the house for the same cone was found Mrs. dual enough Burkhead Linda in front of the left rear wheels. Sue money buy five cones and instructed her Simmons, traveling ice driver and Robert to tell the rest of the children *3 route from parlor, learning cream the was in stay yard. to the After Linda Sue and preparatory Sinkhorn, regular operator, the Robert had crossed the street Mrs. Burk- his relief driver. At the time becoming to stepped head to the front door and ob- were the accident attentions of Simmons’s served that the other children were the him, Sinkhorn, directed toward behind and yard, whereupon front she returned to ap- it dump he did not see the truck as pursuits her normal within. proached. operation conducted the sales Sinkhorn which These are the essential facts on right- particular instance out of the in this the trial court determined that none of the wagon. Several hand of the ice cream side duty care defendants had breached a of present, gathering on or children were toward the victim the accident. There of street. the north shoulder of the about nothing was the in the evidence to rebut conflicting wheth- There was evidence as to presumption that the child himself was not were on right er the wheels of the vehicle legally accountable for his Cf. actions. shoulder; however, pavement the or on the 426, Hosley, Ky., Baldwin v. 328 S.W.2d Nobody great it makes no difference. no- (1959). 430 movements, Gregory’s ticed it is clear but respect dump truck it is With got an ice he crossed the street and duty operator obvious that the under a was instant cone from someone. At the passed by of extreme caution as he the tragedy the of the Linda was still at Sue wagon. ice cream whether serving window and her. Robert with plaintiff the evidence adduced they Linda Sue Robert testified that sufficient Mul- justify to inference that were Gregory’s presence of until unaware any way lins failed in to observe screams, heard him discovered and, required so, standard of care if lying in only the middle of the street. The such omission was a of the Mullins, cause acknowledged eyewitness was boy’s little death. dump driver of the truck. a investigating Mullins officers It is contended the exer proceed- statement to the effect that he was ordinary cise care of Mullins should have ing pur- Knopp for the eastward on Avenue stopped (or jury at least that a could rea
pose making delivery of a somewhere near sonably find), so he re as would have been the end he of street. As quired by statute to do if the ice cream left, stopped ice cream to his wagon had been a school or church bus. child ran from side of behind into the propensity young Cf. KRS 189.370. The the dump truck in front its left rear must, children to dart run or into the street dual stopped wheels. Mullins as soon as course, anticipated by motorists who could, point beyond a 60 feet ordinary see or the exercise care boy’s body, lay 12 feet east some edge could see them near the street .of According of the wagon. Patterson, 360, to Ky. Lehman v. 182 298 statement, 897, truck was travel- (1944); Fuel S.W.2d 899 United Gas ing speed per at a hour(!) Adm’x, of five miles at Co. Ky., v. Friend’s 270 S.W.2d the time of the accident. There was no oth- Kentucky In Co. v. Power er operation. concerning Thompson, Ky., (1960), evidence its 335 S.W.2d good officers found the truck’s brakes or- a case in which the driver of a truck traveling roadway passing public rear to 13 feet in wheel truck on a girls walking width could young see distinguishable two in that there was along with their backs to him a narrow no to obstruction in or next the street. margin edge road, off Presumably the left the child would have run into driver, upon noticing parked observed that truck had it next to been girls curb, possible peril, prevent “in nothing because to there was duty would have been under a either to her seeing it as she dashed toward the stop his hand, reaching before them or street. On the other Eichstadt v. Underwood, carefully slowly to move them so striking (1960), pedes- reduce the chance them elderly case in which an prin almost zero.” think the same trian crossing intersection We at an walked in- ciple applies because, although this case the rear wheel automobile which par Mullins did in making appeared suddenly not in advance see the a turn had *4 child path, ticular out the her who ran into it was held that the evidence could group not to see have failed the of rise to “a factual issue as to whether * * * gathered children wagon the appeared at the automobile so sud- and, care, denly ordinary the of, exercise of to appellee front and so close to anticipate momentarily child that that some her initiated previously forward move- hidden from ment view the bulk of the ice involuntarily carried her into the * ** might suddenly emerge from theory, car.” On the same if duty, believe, it. behind It Mullins’s was his we truck moving too fast as stop either to it his as it came abreast the ice cream truck at close quarters, of the rear end ice cream wagon speed of the or its emergence and sudden from carefully to move a so as concealed raise a factual slowly to reduce issue to a minimum the as to op- chance of whether the child had an portunity collision with one more to or of the children. observe react to it in time
to check his own momentum. If he did not, speed the of the truck could be found good brakes and The fact that with to proximate have been a cause of the ac- required 60 driver it best efforts of Moreover, cident. can hardly be denied truck to a halt bring 72 feet to to that the motion of the truck was a factor that he was assertion refutes driver’s in the severity injury of inflicted and, per hour only miles proceeding five collision. was, As it Mullins admitted he in support an judgment, our would boy saw the run into side of the truck. speed at a that moving ference that he was Had he traveling been crawl, at a as he of circumstances excessive under the should have been under the circumstances the case. case, of the might a jury reasonably con- clude that he stopped could have almost say to are unable We instantly and that the child would not have truck, distin running child’s into been killed. striking the child from the truck’s
guished
point
of this
realize the closeness
on,
question
We
dispositive on the
head
circum-
opinion
cases
but are of
proximate
In most but not all
cause.
shown,
further
stances
without
held
such circumstances
thus far
it has been
under
proximate
explanation
in the form of
speed
been a
or elaboration
could not have
are sufficient to raise
See,
example,
Clough,
testimony,
v.
cause.
defensive
Jordon
permissive
negligence on the
Ky.,
581,
(1958), and Hat
a
inference of
313
584
S.W.2d
Adm’x,
Ky. 782,
part
as a
of the truck driver
Sargent’s
v.
306
209
field
Hence it
306,
Hos
causal factor in the accident.
308
Hoskins
S.W.2d
v.
kins,
in favor of the
(1958), in
error
direct a verdict
37
be-
to another
risk
plain-
unreasonable
state
the evidence at the close of
volves
other,
expectable action
tiff’s case in
chief.
cause
Id.,
force of nature.”
person, or a
a third
Whether
of the ice cream
302.
§
dispensary
any duty
violated
of care to
presents
ward the child
novel
actor
if the
negligent
“An act
jurisdiction.
For a discussion
affect,
should
realizes or
or
it to
intends
decisions from
in kindred sit
other states
affect,
con
likely
that it is
realize
annotation, “Liability
uations see
of vendor
or an animal
another,
person
third
duct
or huckster
street to
attracting children to
unrea
create an
as to
a manner
in such
automobile,”
injured by
child
another
74
Id.,
other.”
risk of harm
sonable
1056,
A.L.R.2d
cited.
and cases therein
§
Softee, Inc.,
See also Sidders Mobile
v.
App.,
(1961);
Ohio
Baker-
Common sense and the most min was
done was hit and
being
regard
suggest
north third of
humanity
imal
that one
truck in the
a west-bound
intentionally
south to
who
small children
as she ran from the
attracts
the street
place
go
in order to
to a
in or so close to a street or
the street
north side of
highway
suit
her
danger
being
that there is
of their
the obstruction.
In a
around
by passing
struck
under
contractor
traffic should be
administrator
duty
for the
to maintain a
for such traffic
driver a directed verdict
lookout
the truck
and,
approved by this court
if he observes or in the exercise of
contractor was
ordinary
ap
opinion apparently premised on
care should observe a
vehicle
proaching
enough
theory
im
of the contractor
close
to constitute an
action
hazard,
pres
street was a
blocking
mediate
to warn the children
the sidewalk and
“prior
ent in the
not a
immediate area of the attraction
and remote” but
or make such other reasonable effort to
the accident.
cause of
prevent
being injured
be neces
may
their
out,
pointed
to break
already
have
As we
sary in
the circumstances. This
our
connection
proximate causal
the chain of
person
opinion
reasonably prudent
is what a
be one that
action must
intervening
do,
would
and it is
because the
reasonably
foreseeable
is not
keep any
did
look
vendors
not
admit
thereby
antecedently negligent
actor who
negli
out whatever that we
were
say they
res-
responsibility.
relieved of
Whatever
gent as a matter of law.
respect to
may have with
ervations we
Henry
Adm’r v.
soundness Winders’
op
negligence
of Mullins in
Co.,
certainly
is distin-
supra,
Bickel
(if
erating the
it be found that
Perhaps
guishable
degree.
Bickel should
independent
negligent)
he was
was not an
might cross
have foreseen that children
negligence
the ice
superseding
act
process of
get
street and
run over
vendors,
because it was within
obstruction,
at least
going around his
but
foreseeability. Re
realm of reasonable
them.
In this case
he did not solicit
447;
Torts, Negligence,
statement of
§
substance,
were,
consciously and
children
*6
Westerfield, Ky.,
Hines v.
point midway
31st
between
I
opinion because
I dissent from
from
going
child
home
six-year old
A
principles on the
it sets forth
Drive two
believe
on River Park
school located
which are
hereinafter discussed
subjects
work
place where the
of the
blocks west
holding
opinion’s
contrary
so
to the established
come now to
law
We
the ice-cream
stopping
trial courts
of the bar will
the act of
and members
is,
a condi-
wagon
or how
on the
rise to
be confused as to what the law
street
charge
future,
imposed duty
a
on those
this
when
tion that
Court will react
present in the
the children
subjects
up
these
“to warn
come
for a determination.
or make
immediate area of
attraction
Although
dump
truck
driver of the
prevent
such other reasonable effort
traveling
speed
testified he was
at
five
necessary
injured
may
being
their
hour,
per
rebutting
miles
and there is no
in the circumstances.”
point,
opinion
evidence on
asserts
this
there
proceeding
was an “inference” he
on the exact
was
This Court has never
at an
in this
speed
excessive rate of
because “the
set of facts adduced
the evidence
required
very
best efforts of the
case. A
case
is
driver”
60 to
recent Ohio
much
Inc.,
stop
my
point
Softee,
feet in
It
which to
the truck.
is Sidders Mobile
petition
upon
App.,
view this statement is
mere Ohio
N.E.2d 115. The
based
conjecture.
alleged
corporation
that the defendant
operating
Xenia,
public
on the
streets of
In referring
speed
dump
of the
Ohio,
night,
brightly
at
illuminated ice-
appellant
truck
admits in his
“There
brief:
truck, equipped
with a bell and loud-
nothing
speed
to indicate excessive
speaker;
seven-year-old girl
that a
the time of the
pro-
accident.” He then
thereby induced to cross the street from
argue
ceeds to
that the truck should have
home;
that,
her
as she was undertak-
stopped.
opinion
wobbles around with
ing
home,
to return
she was struck
and finally
idea
comes up with the
automobile,
passing
because her
view
suggestion that
the driver should have
approaching
automobile was obstructed
speed
lowered the
of the truck to an ir-
by the ice-cream truck. The trial court
reducible minimum.
Upon
petition.
sustained a demurrer to the
Obviously the driver must move his
appeal
the action of the trial court was
dump
along
at some time. The truck
upheld,
appellate
stating:
court
in fact had already passed
“The
being
defendant is accused of
where the child was concealed behind the
Piper
sort of modern Pied
and as
ice-cream
(and
when
we use the
responsible
such
any
and all mis-
language of the opinion) “the child ran
haps
young
to its
It
customers.
from
dump
behind
into the
side
safety
not an insurer of the
of its
truck on front of its left rear dual wheels.”
patrons.
charged
Nor is it
with a vio-
speed
I do not
believe the
*7
operation
lation of law. The
of an
played any part in,
truck
consequently
and
ice cream vending truck
to
attractive
of,
proximate
was not a
cause
the accident.
admittedly
children is
not
nuisance.
speculate
Nor do I believe
canwe
that the
^^
consequences
injurious
would have been
moving
less severe if the truck had
law,
been
At common
or in
absence of
slowly.
prohibitive
more
statute,
stop
a motorist
can
car
and
whenever
wherever he wants to.
principles
The
announced in the follow
This is
right
incidental to the
travel.
to
ing cases
controlling
would seem to be
in
Am.Jur.2d,
See 8
High-
Automobiles and
respect
presented:
to
facts
Hoskins
way Traffic,
816, p.
sec.
Hoskins,
368;
v.
316 S.W.2d
Jordon
581;
Clough, Ky.,
v.
313
Hatfield
S.W.2d
Appeals Maryland
The
in
Court
Sargent’s Adm’x.,
Ky. 782,
v.
306
209 S.W. Bloom v. Good Humor Ice Cream Co. of
306;
McLaughlin,
2d
384,
592,
Lieberman v.
233 Baltimore,
Md.
18A.2d
179
763,
753;
Ky.
Knecht
Buck
S.W.2d
v.
question
by
on the
the causa-
exact
raised
shorn,
Ky. 329,
held for the death of this Thomas, Company Ky. child, injured who was not struck or S.W.2d 605. by any placed of the obstructions it and the most that can judgment. I would affirm the *8 is, be said it created the conditions that caused her have MOREMEN, JJ.,
to cross to the MONTGOMERY and north side in doing join was struck me in dissent. she