Kentucky now defines proximate cause in the terminology of "a substantial factor" in causing the event which occasions the injury. Claycomb v. Howard, Ky., 493 S.W.2d 714, 718 (1973); Collinsv. Galbraith, Ky., 494 S.W.2d 527, 530 (1973). It is questionable that there ever was a blanket common law rule of nonliability for a tavern owner who illegally sells alcohol in Kentucky.
The use of "public policy" in the raw as a liability limitation is a more flexible approach. This court in Claycomb v. Howard, Ky., 493 S.W.2d 714, 718 (1973) approved the Restatement 2d sec. 431 substantial factor test as a means by which the jury could find legal cause and therefore fix responsibility for the harm done to the plaintiff. Implicitly reserved in that decision but expressly declared in other opinions, are the collective substantive policy rules which limit responsibility for a negligent act.
This jurisdiction not infrequently looks to the Restatement of the Law of Torts in fixing tort liability. Cf. Claycomb v. Howard, Ky., 493 S.W.2d 714 (1973), and Dealers Transp. Co. v. Battery Distrib. Co., Ky., 402 S.W.2d 441 (1965). Looking to the Restatement (Second) of Torts (1965), we find:
We need not consider the issue of the appellant being surprised by the testimony since our law is clear that a police officer cannot express his opinion on the reasonableness of speed of an automobile at the time of the accident because such testimony invades the province of the jury. Claycomb v. Howard, Ky., 493 S.W.2d 714 (1973). We concede that admission of the trooper's testimony in this regard was error; however, the question remains was it prejudicial.
The witness Frank Sargent drove past the scene of the accident at 7:30 or 8:00 A.M., in the daylight, at a speed of 40 to 50 m. p. h., saw the ice at a distance of 50 to 60 feet, continued across it without slackening speed, and had no trouble. Four other occupants (one of them being the husband of Mrs. Harris) of a car that drove by in the same direction within minutes after the accident were permitted to testify that they saw the ice from a distance of three or four car lengths and that the driver slowed down from 40 to 45 m. p. h. to 5 m. p. h., or "as much as possible," and passed on with no difficulty. The admission, over Sechrest's objection, of this array of evidence to the effect that some people got by without accident entitled him to rebut it by evidence that other motorists were not so fortunate. Claycomb v. Howard, Ky., 493 S.W.2d 714, 717 (1973). In short, the appellants, having opened the book on the subject, were not in a position to complain when their adversaries sought to read other verses from the same chapter and page.
She had the duty to exercise ordinary care for the safety of other persons using the street, which general duty included the following specific duties: (a) to keep a lookout ahead for other vehicles in front of her or so near her intended line of travel as to be in danger of collision, (b) to have her automobile under reasonable control, (c) to exercise ordinary care generally to avoid collision with other persons or vehicles using the street, and (d) not to enter the intersection while the traffic light for her lane was red. If she failed to comply with any one or more of these duties and such failure was a substantial factor in causing the collision, then Viola was entitled to recover; and unless the jury so believed, the law was for Marilee. See Restatement 2d Torts, ยง 231, as cited in Claycomb v. Howard, Ky., 493 S.W.2d 714 (1973), using this terminology in preference to "proximate cause." The converse of the instruction on Marilee's liability was not given in this instance and in that respect the instructions were less favorable to Marilee than she was entitled.