Opinion
November 22, 1961.
Appeal from the Circuit Court, Shelby County, Coleman Wright, J.
Hargadon, Hargadon Bennett, James B. Lenihan, Louisville, Ben G. Matthews, Shelbyville, for appellants.
Lucien Kinsolving, Kinsolving Kin solving, Shelbyville, for appellees.
A collision occurred between a truck driven by James Lee Henry but owned by Vernon Jones and an automobile driven by Johnny Earl Barnes in which Joan Barnes, his wife, was a passenger. Jones sued Barnes for damage to the truck and Barnes filed answer. Then, in a separate action, Johnny and Joan Barnes sued Jones and Henry for personal injuries and for damage to the automobile. The circuit court sustained a motion to dismiss the complaint of Johnny Barnes but ordered that same be considered as a counterclaim in the action filed by Jones against Barnes. The cases were consolidated and tried together. The jury found both drivers negligent but awarded a verdict in the amount of $500 in favor of Joan Barnes against Jones and Henry. Both Johnny and Joan Barnes have appealed from the judgment entered on that verdict.
The collision occurred in Simpsonville. Henry was driving east on U.S. 60 and was in the process of negotiating a left hand turn into a side street when the truck was struck on the right rear wheel by the automobile driven by Barnes. Henry testified that he had activated his turn signal indicator, that Barnes was from 300 to 500 feet away when he started his turn, and that after starting his turn he noticed that Barnes was proceeding at an excessive rate of speed. Barnes on the other hand testified that he was driving west on U.S. 60 at a speed of 20 to 25 miles an hour, that Henry started his left-hand turn when the two vehicles were about 90 feet apart, and that he immediately applied his brakes but was unable to avoid the accident. The Barnes automobile slid on the wet pavement and struck the truck which was in Barnes' lane of traffic.
At the outset we note there was sufficient evidence to go to the jury, and the court did not err in overruling Barnes' motion for a directed verdict.
The appellants insist that the court erred in giving the following two instructions:
"4. It was the further duty of Johnny Barnes to yield the right-of-way to James Lee Henry so as to permit him to pass into First Street in safety; if the jury believes from the evidence that James Lee Henry reached and entered the intersection toward the center point first, since he thereby had the right-of-way over Johnny Barnes."
"8. Since Johnny Barnes, who was operating on the right of the truck driven by James Lee Henry, as he turned into the intersection, had the right-of-way through the intersection, it was the further duty of James Lee Henry, the driver of plaintiff's truck to yield to that right-of-way to Johnny Barnes, unless the jury believes from the evidence that James Lee Henry driving the truck of Vernon Jones first reached and entered the intersection beyond the center point, in which event he and not Johnny Barnes had the right-of-way through the intersection, and it was the duty of Johnny Barnes to yield to him."
The rule is that a vehicle proceeding in a straight course shall have priority over a vehicle making a change in direction. An instruction giving priority to a turning vehicle if it has reached and entered an intersection first is erroneous. Weaver v. Brooks, Ky., 350 S.W.2d 639; Rankin v. Green, Ky., 346 S.W.2d 477; Smith v. Sizemore, Ky., 300 S.W.2d 225.
The trial court also refused to permit the introduction of testimony in regard to the amount of special damages incurred by the appellants. The appellees admit this was error but argue that it was not prejudicial. They point to the fact that Joan Barnes visited a doctor but few times and was not severely injured. On the other hand it was shown that Joan Barnes was pregnant at the time and had to make some visits to her doctor in addition to those she would regularly have made. Whether the $500 allowed by the jury was too much or too little we are not in position to say. Certainly one of the few concrete standards by which a jury may measure pain and suffering is the cost incurred by reason of special damages. To preclude testimony on that point was prejudicial error.
The judgment is reversed.