*1 578 694, manslaughter

43 S.W.2d reversed 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. appellee. 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. The 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. Commonwealth, 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 Board 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 (east) 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 the 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 wide, 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 Corporation 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 where 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 been 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 such 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 practicable 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 the 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., 244 S.W.2d 727. space for pass. two vehicles to The act of the unidentified driver driving in question, We face the then appellee’s on car side of the road and Greyhound negligence whether the driver’s was, forcing him into the ditch in the by (found jury) cause opinion majority court, of a of this question view the We unexpected and unusual event which being intervening superseding one or reasonably ap- by was not foreseeable Westerfield, Ky., In Hines v. cause. pellant parking in A majority her car. 728, plaintiff S.W.2d motorist was forc of the court think that the act of the ed into ditch when another motorist third driver the superseding cause path pass attempting into in the de brought which about the accident. It car, parked partly which was fendant’s follows that a verdict should have been pavement. holding In that act of appellants.” directed passing superseding motorist was a cause, as to relieve the defendant from such opinion It our the act of the (254 said liability, this Court S.W.2d stopping driver on the left 729).: position side of road in such a toas us,

“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 extraordinary 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 driver 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 However, 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 negligent 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 husband 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 plainly 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 conclude 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 therefore 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.