313 Ky. 593 | Ky. Ct. App. | 1950
Affirming.
In this motor vehicle collision case, a jury awarded appellee $1650 for damage to, and loss of the nse of its bus. Appellant contends (1) it should have had a directed verdict because appellee’s driver was guilty of contributory negligence gs a matter of law; (2) an “emergency instruction” should not have been given; and (3) there was no proof of damage 'by reason of the loss of use.
Early one afternoon appellee’s bus was traveling on an 18 foot highway. Appellant’s one and one-half ton truck was parked in front of a grocery store on the left-hand side of the highway as the bus approached, two or three feet off the paved surface. Another automobile proceeding in a direction opposite to that of the bus
It appears the bus driver did not observe the presence of the truck on or near the highway until just before the collision took place. On the basis of this proof, appellant argues the bus driver was guilty of contributory negligence as a matter of law because he was not keeping a lookout.
It may have been negligence on the part of the bus driver in failing to observe the presence of the truck and anticipate that it might be driven onto the highway. On the other hand, the approach of the automobile created such a condition that the bus driver may have been justified in concentrating his attention on his own side of the highway. In addition, one could reasonably conclude that, even if he should have seen the truck before it moved, he had the right to assume it would not be driven blindly onto the highway. Whether or not his actions constituted contributory negligence was clearly a jury question.
Appellant also suggests the bus driver should have stopped the bus more .quickly, but this was likewise an issue properly submitted to the jury.
Instruction No. 2 advised the jury that if the bus driver was suddenly and unexpectedly confronted with an imminently dangerous situation caused by the truck driver’s negligence, the former was not required to adopt the best possible course to avoid the impending collision, although he was still required to operate the bus in a reasonably prudent manner. While we- do not think it was necessary for the court to have given such an instruction, it was not improper under the circumstances. The truck did pull out in front of the bus from behind another vehicle, and there was a “sudden appearance.” If, as the instruction set out, the emergency was created by the negligence of the truck driver, the bus driver was not under a duty to select the best means of avoiding the danger. This instruction did not absolve him of negligence, but simply defined in greater detail his duties under the preceding contributory negligence instruction.
The judgment is affirmed.