author: THEODORE McMILLIAN, Special Judge.

text:
    Mildred SCHILLING, Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY, a Corporation, Defendant-Appellant.
    No. 32433.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.

      Gerald D. Morris, St. Louis, for defendant-appellant.
    Hullverson, Richardson & Hullverson, Orville Richardson, Thomas J. Motherway, St. Louis, for plaintiff-respondent.
   THEODORE McMILLIAN, Special Judge.

This is an action for the recovery of damages for personal injuries sustained by the plaintiff, a pedestrian, when she was struck while attempting to cross an intersection by one of defendant’s motor buses. Plaintiff’s major complaint was a fractured right hip. Damages are not contested; therefore, our inquiry will be limited to the issues of liability. A jury verdict was returned in the sum of $10,500; thereafter, defendant’s motion for judgment in accordance with its motion for a directed verdict; or, in the alternative, for a new trial was denied. Defendant appealed. The parties will be referred to as they were in the trial court.

Defendant complains of errors for the following reasons: (A) no substantial evidence to support a finding that its bus driver failed to keep a careful lookout, or (B) that he violated the traffic signal; (C) that plaintiff was contributorily negligent as a matter of law, thus precluding any primary negligence submission; (D) no evidence of causation between failure to keep a lookout and the casualty; and finally, (E) there was no substantial evidence that at the moment defendant’s operator knew, or could have known of plaintiff’s position of immediate danger, defendant’s operator still had enough time, in the exercise of the highest degree of care, to have avoided injury to the plaintiff by either stopping or slackening the speed of the bus. Needless to say, each contention requires a review of the evidence.

In reviewing the evidence, we shall adopt, as we must, that evidence, including any produced by defendant, most favorable to plaintiff. Also, we invoke all reasonable inferences supporting her case; this under familiar rules of appellate review. Loyd v. Moore, Mo.App., 390 S.W.2d 951, 954(1). Moreover, we recognize the rule that facts essential to recovery may be proved by circumstantial evidence and inferences drawn therefrom. Hartz v. Heimos, Mo., 352 S.W.2d 596, 601(3).

For our purposes, as did the parties, we shall assume that the two streets, Gravois and Bates, intersect at right angles, and that Gravois is a north-south street, while Bates is an east-west one. This intersection was controlled by electric traffic signals; one, on the southwest corner facing southbound traffic; the other, on the northeast corner facing eastbound Bates’ Street traffic, as well as for pedestrians crossing Gravois from the west to the east. The evidence showed, on the day in question, that for southbound vehicular traffic on Gravois, there was a broad, painted, white-stop line, approximately 35.5 feet from the north curbline of Bates. The evidence was somewhat conflicting as to whether or not, on the day in question, there were painted crosswalks. Evidence also established that the traffic signal for southbound travel was green for 59 seconds, amber for 3 seconds, and red for 38 seconds. Other evidence showed that from the center line of Gravois, separating north and southbound traffic, the next line to the west (broken line marking a lane) was 9.8 feet, and from that lane line to the west curb-line of Gravois was 19 feet. Also, northbound Gravois bends to the west less than a block north of Bates.

On August 9, 1963, plaintiff, Miss Mildred Schilling, age 51, was walking south-wardly on the west side of Gravois, approaching the north curbline of Bates. It was her intention to continue south across Bates, but as she reached the corner, the light on the southwest corner of Bates and Gravois turned from green to amber. She paused momentarily, looked to the east, and saw that the light on the northeast corner of the intersection was green. She then looked to her left (north), saw nothing close to the intersection, and then stepped down from the curb to cross Gra-vois. She said, “Traffic * * * seemed in order. * * * It seemed all right to go. * * * I didn’t see anything, why I shouldn’t cross the street.” As she reached the second lane, plaintiff turned her head to the right (south) to look for eastbound traffic on Bates which might turn left to go north on Gravois. According to plaintiff, she was walking normally, and had taken 6 or 7 steps from the curb, and had reached the second lane when the next thing she remembered was that she was lying in the street. She neither saw nor heard the bus before she was struck. However, thereafter, she remembered lying several feet in front of the bus and saw a man step down from it.

In this posture of the case, plaintiff, for limited purposes, called defendant’s operator as a witness. He testified, on the day in question, that he was the driver of the bus that had hit plaintiff. Defendant’s counsel, then by cross-examination, developed the following: that the streets were still somewhat wet from an earlier rain; that he was driving 3 or 4 feet from the curb in the curb lane; that when he was 100 feet back from Bates, his speed was 20 miles per hour; that when he was 50 feet back, the light changed to amber; that when he applied the brakes, he removed his foot from the gas to the brake; that the bus skidded; that he saw plaintiff while she was standing on the curb; that when the light facing him went to amber, plaintiff stepped from the curb and began to cross Gravois; that when plaintiff stepped from the curb, the bus was 25 to 30 feet from her; that the bus speed when plaintiff stepped from the curb was 8 to 9 miles per hour, and it was sliding; that he tried to steer the bus away from her (to his left); that skid marks were from 35 to 40 feet long; that the bus was 40-45 feet long and about 8 feet wide; that plaintiff was struck by the right front corner of the bus as it was swerving (3 or 4 feet) and was still skidding; that when the bus stopped, the right corner was about 8 feet out from the right hand (west) curb and so was plaintiff; and that at contact, the bus was moving not over 3 miles per hour, and it did not move after contact.

On redirect, plaintiff developed that the intersection was level; that the back end of the bus stopped near a heavy, white line where the bus driver knew the front end of the bus should have stopped for the red light; that when plaintiff stepped from the curb, he didn’t see her look toward the bus; and that the bus at no time went into Bates.

Plaintiff also put into evidence two ordinances of the City of St. Louis: Ordinance No. 47360 which established electric signals for the Gravois and Bates intersection, and Ordinance No. 46687, Section 40, which provides that drivers and pedestrians facing green lights may proceed; and that drivers and pedestrians facing red lights shall stop. Further, it allowed pedestrians to proceed across in the crosswalk when facing a green light; and, also, required drivers, upon the display of an amber signal, to take heed that a red signal would be promptly exhibited thereafter, and such driver shall not thereafter enter the intersection. All persons were required to obey all official traffic control signals.

In support of Point (A); i. e., there was no substantial evidence adduced to support a finding that defendant’s operator failed to '.keep a lookout, defendant argues that since plaintiff only knows she was walking across the street, and had taken 6 or 7 steps, and remembers no more, of necessity, plaintiff must rely upon her only other factual witness, defendant’s operator. This being the case, defendant contends that since the operator said he kept a careful lookout; i. e., saw the light change, saw plaintiff step from the curb, and observed her up to the moment of impact, and since there is no evidence to the contrary, plaintiff is thereby precluded from a recovery on the lookout theory. Moreover, defendant further argues, assuming the above hypothesis to be valid, that thereafter he could not have avoided the casualty; and, therefore, any failure to see plaintiff was not an efficient cause of the accident. Citing in support therefor, Chandler v. Mueller, Mo., 377 S.W.2d 288; Levin v. Caldwell, Mo., 285 S.W.2d 655(3); and Zalle v. Underwood, Mo., 372 S.W.2d 98. None would appear to be apropos.' In Chandler, the defendant appellant had no direct proof of Chandler’s failure to maintain a lookout, and was forced to rely upon Chandler’s testimony that Chandler was not keeping a lookout. In Levin, plaintiff sued both drivers in a two-car collision and called both as his witnesses without reservation. He was thus held to be bound by testimony offered by him since he had no other evidence, direct or circumstantial, that defendant whom he charged with failure to keep a lookout could have seen the other automobile sooner than he did. In Zalle, both drivers in a two-car collision were oblivious to one another’s approach, and there was no evidence of their respective positions sufficient for the jury to determine whether any failure to keep a lookout caused the collision.

The fallacy of defendant’s argument is that defendant assumes that their operator became plaintiff’s witness with respect to all his testimony. Here, plaintiff, not knowing herself what had struck her, and the fact of which was denied by defendant, was forced to call the bus driver to prove an essential element of her case; namely, that defendant’s bus struck her. So, plaintiff, pursuant to RSMo 1959, Section 491.030, V.A.M.S., called defendant’s operator to testify in her case. We rule, from the evidence presented, that plaintiff is only bound by that part of the operator’s testimony which she offered and thus vouched for as true. As a corollary, what defendant’s operator may have said upon cross-examination by defendant’s own counsel and thus presumably in its own behalf, is in no way binding upon the plaintiff. Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353, 355(3-7). Moreover, the fact that the adverse witness was not a party defendant does not restrict application of the rule. Neuhoff Bros. Packers v. Kansas City Dressed Beef Co., Mo.App., 340 S.W.2d 193, 196(2); Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483, 486(4); see also Shepard v. Harris, Mo., 329 S.W.2d 1(1). (Cross-examination or redirect in response thereto; general credibility of adverse party not vouched for by plaintiff.) Therefore, if we treat, as we must, the bus driver’s testimony concerning his lookout and efforts to avoid the casualty as defendant’s evidence, the question remains: Was there any substantial evidence in the whole case from which it could be reasonably inferred that the bus driver did not keep a careful lookout? If so, then his avowals to the contrary would be unavailing, (Hartz v. Heimos, Mo., 352 S.W.2d 596, 602(4)) provided, plaintiff was not guilty of contributory negligence.

The bus driver was under a continuing duty to exercise the highest degree of care at all times and at all places, to observe not only persons on or approaching the street on which he was traveling, but also all related conditions ahead and laterally which might reasonably affect his own safety and that of others. See v. Kelly, Mo.App., 363 S.W.2d 213, 216(5), citing Rohmann v. City of Richmond Heights, Mo.App., 135 S.W.2d 378, 383 (duty to notice holes in the street); Schmidt v. Windish, Mo., 304 S.W.2d 891, 893 (driver required to be aware of what could be known by observation or conscious recognition). Disregarding for the moment, plaintiff’s exhortation that we take judicial notice that the normal walking step of a person is about 2.5 feet, a jury could still find that plaintiff was 8 feet from the curb at the moment of impact. Taking in consideration that the normal walking speed of a person is 2 to 3 miles per hour, or 2.9 to 4.4 feet per second, plaintiff would have consumed 2.7 seconds in walking 8 feet. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 635 (9). Therefore, since the bus was being driven at a speed of 20 miles an hour or 30 feet per second until it reached a point 50 feet north of Bates, and since plaintiff did not leave the curb until the light was green in her favor, a jury could have found that the bus was 5.7 seconds, or 121 feet away from the point of impact when the light for southbound traffic first turned amber. The 121 feet distance is the sum of 50 feet of travel in stopping (consuming 3 seconds) and 71 feet of travel at 20 miles an hour (2.7 seconds). The manner of 50 foot of travel in stopping is: The driver testified that the bus was moving 20 miles an hour until it was 50 feet from Bates. So, a jury could find that at that speed, the bus was stopped in 50 feet under the existing circumstances and that the bus did not move after impact. The best evidence, of course, of the distance in which a bus could be stopped is the distance in which it was. Loyd v. Moore, Mo.App., 390 S.W.2d 951, 957(9). On the other hand, we also judicially know that the reaction time of the bus driver, absent other evidence, is ¾ of a second. Koogler v. Mound City Cab Co., Mo., 349 S.W.2d 233. Hence, the bus traveled the first 22.5 feet of its total 50 foot stopping distance in- ¾ of a second. Its speed thereafter diminished at an average of 10 miles an hour, so that it covered the last 27.5 feet of its total 50 foot stopping distance in about 2 seconds. Therefore, it covered the entire 50 foot distance in less than 3 seconds. For these reasons, we conclude that a jury could have found that the bus driver should have noticed the electric signal at Bates, which he said he did, when he was 121 feet away, and should have then taken action to control the movement of his bus so as to stop it at the broad, white-painted, traffic stop line about 35 feet from Bates, where he knew he was required to stop. In this regard, he negligently failed to keep a careful lookout; therefore, it was not error on the part of the learned trial court to submit the case to the jury on the theory of lookout. See v. Kelly, supra, holding that plaintiff was not contribu-torily negligent as a matter of law. Murphy v. S. S. Kresge Co., Mo.App., 239 S.W.2d 573; Politte v. Miller, Mo.App., 301 S.W.2d 839. The Murphy case merely cites the well-known principle that a person is required to make ordinary use of his faculties to observe and avoid danger. Also, the Politte case, with which we concur, states that a green light does not permit one whom it favors to proceed with shut eyes and ears across an intersection. Here, plaintiff told us that she looked, and a jury could find that she did; but, as she said, “* * * saw no reason not to go ahead” still the jury could have found the bus had not yet come to the bend, which was less than a block north of Bates. More appropriate would seem to be Wofford v. St. Louis Public Service Co., Mo., 252 S.W.2d 529, 531(4). In the Wofford case, plaintiff looked, could see for 75 feet, saw nothing coming, walked 10 feet and was hit by a bus which could have been stopped in less than that distance. Also, in Miller v. St. Louis Public Service Co., Mo., 389 S.W.2d 769, 771(3-5), plaintiff looked, saw no traffic near, walked 22 feet without looking again and was hit. Obviously, since we have found that defendant should have been put on notice when the green light turned to amber (121 feet away), and he saw plaintiff step from the curb, and that plaintiff was crossing at the corner (in a marked or unmarked crosswalk) with a green light in her favor, apart from any right on plaintiff’s part to assume (absent evidence to the contrary) that the driver approaching a red light would exercise some care to bring his vehicle under control, we hold that contributory negligence was, to say the least, a jury question.

As to the City of St. Louis Ordinances heretofore mentioned, defendant contends that since the bus stopped for the red light short of the imaginary eastward extension of the north curbline of Bates, it did not violate the traffic signal. In short, in that no part of the bus was stopped in an areaway which was common to both Bates and Gravois, the intersection was not entered; hence, no violation. Defendant relies upon Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, wherein it was held that the area of an intersection embraces the paved space common to both roadways. As such, we have no quarrel with that definition; yet, it seems inappropriate to our immediate problem; i. e., the status of a crosswalk. If defendant is correct, indeed, we have an anomalous situation wherein a pedestrian is allowed to enter into a crosswalk, or cross at a corner, on the green light while, at the same time, a motorist facing a red light could enter the same crosswalk and run down the unsuspecting pedestrian with impunity! Unquestionably, the mandate of the ordinance is primarily directed to the obedience by both motorists and pedestrians to the traffic signal. Instruction-No. 2 is a submission of Multiple Negligent Acts in the form of MAI 17.02, which required the jury to find that defendant violated the traffic signal. Defendant concludes, as seen from his arguments, that the only way it could have been violated was for some portion of the bus to have gone into the intersection. However, we cannot conclude, to the detriment of pedestrians or others lawfully within the intersection, and in compliance therewith, that this is the only way in which the traffic signal could be violated. We may well assume, without deciding, that this type of submission is only a general submission and gives the jury no guidance as to the issues involved, but invites them to speculate as to what acts or conduct would constitute negligence pursuant thereto. Hawk-eye-Security Ins. Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622, 629(7-10), where the Court had under discussion “ ‘ * * * disregard electric warning signal * * *.’ ” However, this was •not the criticism leveled in the case at bar; .•and, moreover, in making the submission given, plaintiff was in full compliance with Civil Rule 70.01(b) V.A.M.R. So, too, this charge of error must be denied as ■unfounded. The ordinance requires vehicles to stop when a red light is displayed, and this can only mean that the motorist is required to stop somewhat short of the . areaway at the corner while a pedestrian -is attempting to cross on a green light so •as to permit one to pass without an unreasonable risk of harm.

Finally, defendant urges error in regard to the humanitarian submission. In support •of this charge, defendant citing Findley v. Asher, Mo., 334 S.W.2d 70, states there is no substantial evidence that defendant had •time to avoid injury to plaintiff by either •stopping or slackening the speed of the bus ■after the time plaintiff came into a position ■of immediate danger. Defendant also states that by her testimony plaintiff does not show how far in feet she walked from the •curb, nor how long she took to walk the unknown distance. Therefore, her case in this regard rests on sheer conjecture and ■speculation.

Plaintiff meets defendant’s above contentions by urging that a jury could have found that she walked normally from the curb; and that we, the court will take judicial notice, and so we will, that a normal walking speed is 2 to 3 miles per hour. De Lay v. Ward, supra. Therefore it is argued that the jury could have found that this 51 year-old woman walked into the street at a speed of 2 miles per hour, or 2.9 feet per second. Also, a jury could find that plaintiff was struck after she had taken 6 or 7 steps from the curb and had walked into the second lane. Plaintiff then states that it is a matter of common observation, or we can take judicial notice that a normal walking step is 2.5 feet; and, therefore, she had reached a point about 15 feet from the curb. 31A C.J.S. Evidence § 102, p. 163; 94 C.J.S. Weights and Measures § 1, p. 542; Transcontinental: Insurance Co. v. Stanton, C.C.A., Ill., 74 F.2d 935, 938(9); State v. Varner, Mo., 329 S.W.2d 623; 630 Webster’s New International Dictionary, defining “pace.” No case has been cited, nor has our search revealed one, wherein a Court has taken judicial notice that a normal walking step is 2.5 feet. Plaintiff refers us to State v. Varner, supra, a murder case where the victim was found in an open field, and distances were permitted to be measured, some by stepping (citing 31 C. J.S. Evidence § 102, p. 708). In the Transcontinental case, the testimony showed that a fire escape was within an easy step, instead of specifying the actual distance. The court held, “ * * * It is of common knowledge that distances are frequently measured by pacing or stepping and assuming a pace or step to be three feet. * * * This has been customary from time out of memory.” Webster’s New International Dictionary merely defined pace in terms of step; a unit of measurement for distances — 3 feet. We have no quarrel that a step or pace is or can be a unit of measurement for distances; nor do we quarrel with the fact that where one intentionally and deliberately acts to measure an unknown distance by the use of uniform steps that the results are reasonably accurate using as a unit 2.5-3 feet a step. However, when we talk of a normal walking step, we are concerned with not a constant, deliberate act but a highly variable act of individual human beings. It is true that the doctrine of judicial notice is not a hard and fast one but is one which must be tempered by judicial discretion, the Court not being bound to take judicial notice of matters of fact; and whether they will do so or not being dependent on the nature of the subject, the issue involved and the justice of the case. City of St. Louis v. Niehaus, 236 Mo. 8, 139 S.W. 450. Judge Swayne in speaking of judicial cognizance in Brown et al., v. Piper, 91 U.S. 37, l.c. 42, 43, 23 L.Ed. 200 said: “ * * * This power is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists. Every reasonable doubt upon the subject should be resolved promptly in the negative.” To this, we might well add that where doubt does exist, and no injustice is apparent, the parties should be put upon their proof. Here, we have many doubts; namely, sex, height, age, health, leg length, motivation, etc. Also, no reason has been offered as to any apparent injustice or undue hardship, if notice is not taken. Therefore, we hold that to take notice that a normal walking step is about 2.5 feet is not of sufficient notoriety to be tenable. Accordingly, the plaintiff is put upon her proof.

Therefore, since we do not take judicial notice as requested by plaintiff, then plaintiff’s humanitarian submission must fail unless we can, by substantial evidence, locate the bus at the time plaintiff came into a position of immediate danger. Plaintiff’s testimony concerning being in the second lane is so vague as to be meaningless. Also, it is likewise impossible to tell how far that lane was from the curb. So, the only other evidence as to how far plaintiff was from the curb was the operator’s testimony of 8 feet. Under the discussion pertaining to lookout, we have already demonstrated that the jury could find that the bus was 5.7 seconds, or 121 feet away when the light for southbound traffic first turned amber. So also, by similar mathematics the jury could find, when plaintiff came into a position of immediate danger, that the bus was 31 feet, or 2.7 seconds away from the point of impact when plaintiff stepped from the curb. We arrive at 31 feet by subtracting 90 feet of travel (3 second-light from amber to green) from 121 feet. This being the case, we hold that since it took 50 feet to bring the bus to a stop; defendant did not have the means available, by using the highest degree of care, to avoid injuring plaintiff, by stopping his bus, after plaintiff came into a position of immediate danger. Therefore, plaintiff made no submissible case on failure to stop.

We note that plaintiff’s verdict-directing instruction on humanitarian negligence, unlike the one evasive act (slackening and swerving) submitted in Frandeka v. St. Louis Public Service Co., 234 S.W.2d 540, 549(17), submitted disjunctively either stopping the bus or slackening its speed so as to avoid the accident. We also find from the evidence that plaintiff was struck by the right front corner of the bus; therefore, in order to have avoided the accident, the operator would have had to slacken his speed sufficiently to allow plaintiff time enough to completely cross the path of the bus, which is 8 feet wide, or 2.7 seconds. Therefore, since a jury could have found that plaintiff came into a position of immediate danger as soon as she stepped from the curb, and since plaintiff was then 2.7 seconds away from the point of impact, and at least 3 seconds (50 foot of travel for stopping time) required to stop, we find that a sub-missible humanitarian case on failure to stop was not made. Also, we find that since the bus was 8 feet wide and that the whole front of the bus would have to be cleared, there was no slackening of speed case made under the “almost escaping rule,” Findley v. Asher, Mo., 334 S.W.2d 70. Therefore, we hold that plaintiff’s evidence failed to support either humanitarian submission, and that in so instructing the jury, the Court committed prejudicial error.

For the reasons stated herein, the judgment is reversed and the cause remanded and a new trial granted on all issues per-taming to liability only; and it is our further order that the portion of the verdict pertaining to damages in the sum of $10,500 be and is hereby held in abeyance and if on retrial, the issue of liability be found in favor of plaintiff and against the defendant, judgment should be entered for plaintiff in the sum of $10,500. If on retrial the issues pertaining to liability are found for defendant, judgment should be entered for defendant.

ANDERSON, P. J., and WOLFE, J., concur.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Mary RAMATOWSKI, Plaintiff-Respondent, v. Richard RAMATOWSKI, Defendant-Appellant.
    No. 32551.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.
    Stewart & Bruntrager, St. Louis, for defendant-appellant.

      Francis L. Kane, David L. Campbell, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

With commendable frankness counsel for defendant, the appellant, have voluntarily raised the question of whether the judgment appealed from in this case is a final and appealable judgment. They conclude that it is, a decision with which, regretably, we cannot agree.

Plaintiff and defendant are wife and husband. Plaintiff began the suit by filing a petition for a divorce, to which defendant initially responded by filing an answer and cross-bill in which he sought the divorce. Subsequently, defendant filed an amended cross-bill in which he alleged that at the time the parties went through the marriage ceremony plaintiff was, and for some time theretofore had been, insane, and prayed that the marriage be annulled. At the suggestion and request of defendant the court appointed a guardian ad litem for plaintiff, who was later joined by a guardian of plaintiff’s person appointed by the Probate Court of the City of St. Louis.

At the start of the trial, held on June 8, 1965, after all had announced ready, trial counsel for defendant stated to the court that he would proceed with defendant’s case, that no evidence would be offered on the part of plaintiff, and moved for the dismissal of plaintiff’s petition. Neither of the guardians, who are members of the Bar and who also served as attorneys for plaintiff, made any comment. The court replied that it would rule on defendant’s motion at the close of all the evidence. The parties then proceeded to introduce evidence pro and con on the issue of plaintiff’s sanity, at the conclusion of which the guardians separately moved for the dismissal of defendant’s cross-bill. The court took the entire matter under submission. On November 19, 1965, the court entered the following order:

“ ‘Plaintiff’s petition for divorce dismissed for failure to prosecute. On evidence previously adduced defendant’s amended cross bill for annulment denied. Costs against defendant.’ ”

In due time defendant filed his motion for a new trial or in the alternative for judgment in his favor, stated in that order. Under the date of December 17, 1965, the following entry appears in the record:

“ORDER OF 11 ¡10/65 AMENDED
‘“It is ordered by the Court, by consent of the parties hereto, that Order setting aside the dismissal of plaintiff’s petition be amended, and said petition be reinstated, pursuant to Rule 75.01 Missouri Rules Civil Procedure.’ ”

(The record contains no prior order setting aside the dismissal of plaintiff’s petition. Presumably what was referred to was the order dismissing plaintiff’s petition.) Subsequently, the court overruled defendant’s alternative motion for a new trial or judgment and defendant brought this appeal.

As stated in Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, cited by defendant, the general rule is that a judgment to be final and appealable must dispose of all parties and all issues in the case and leave nothing for future determination. Section 512.020, RSMo 1959, V.A.M.S. Civil Rule 82.06, V.A.M.R., governs the separate trials of claims and the finality for appeal of resulting judgments. The first sentence would seem applicable only to jury-tried cases, for it provides that when a separate trial of any claim is ordered and a jury trial is had, the separate judgment entered upon the verdict shall be deemed a final judgment for the purposes of appeal within the meaning of Section 512.020. The second and third sentences, with which we are here concerned, read:

" * * * When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined. * * * ”

As we construe that portion of the rule, when a separate trial is had in a non-jury case the decision of whether the resulting judgment is or is not a final judgment for purposes of appeal turns on the nature of the tried and untried claims. If those tried arise out of the same transactions, occurrences or subject matter as those not tried the judgment is not an appealable judgment unless specifically so designated by the court. Readenour v. Motors Ins. Corp., Mo., 297 S.W.2d 554. On the other hand, if the claims tried are unrelated to those not tried the judgment is deemed a final one for purposes of appeal. Pizzo v. Pizzo, supra.

In the instant case the claims of both parties arise out of the same occurrence or subject matter, their marriage. Plaintiff seeks to dissolve their marriage by a decree of divorce. Defendant sought to judicially eradicate it by a decree of annulment. The trial court denied defendant relief on his amended cross-bill but it did not specifically designate its order or decree as a final judgment for purposes of appeal, and such denial of relief to the defendant did not thereby operate to dispose of plaintiff’s action for a divorce. While the court in its original order and judgment had dismissed plaintiff’s petition for failure to prosecute, the record shows that within the time allowed and with the consent of defendant the court reinstated it. Thus plaintiff’s claim remains pending and undisposed of. Defendant maintains that if we granted the annulment he seeks our judgment would necessarily dispose of plaintiff’s claim. But the finality of a judgment for the purposes of an appeal must be determined by the situation as it exists in the trial court at the time the appeal is sought, not by what may or may not thereafter occur in the appellate court.

It follows that defendant’s appeal is premature, and is therefore dismissed.

PER CURIAM.

The foregoing opinion by DOERNER C., is adopted as the opinion of the court. Accordingly, appeal is dismissed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


author: DAVIS, Commissioner.

text:
    LOUISVILLE SAFETY COUNCIL, INC., et al., Appellants, v. Estel HACK, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.
    Rehearing Denied June 9, 1967.
    James G. Bowman, Louisville, for appellants.
    Josephine P. Hughett, Hughett, Hughett & Hughett, Raymond C. Stephenson, Louisville, for appellee.
   DAVIS, Commissioner.

The Workmen’s Compensation Board dismissed Estel Hack’s claim for compensation on the ground that it was not timely filed. KRS 342.270(1). The circuit court reversed the Board’s ruling and ordered the case remanded for an award of compensation on the merits. The employer and its insurance carrier appeal.

We relate the factual background as gleaned from the record. It is to be noted that no evidence to the contrary was offered by appellants.

Appellee sustained an injury to his back on May 19, 1959, in the course of his employment as executive secretary of the Louisville Safety Council. (Hereinafter Council.) In July of the same year he conferred with the president of the Council, former Governor Keen Johnson. Governor Johnson directed appellee to report the matter to the Vaughan Insurance Agency, the agency which had written the workmen’s compensation insurance for the Council. Appellee did report to that agency and was directed from there to the office of two Louisville attorneys who served as adjusters for the compensation insurance carrier. He submitted an affidavit to the attorneys in which was outlined the history of his injury and subsequent medical attention he had received for it. The affidavit disclosed that the injury had been diagnosed as a herniated disc, but appellee was being treated by a chiropractor.

Appellee was away from his work duties for two or three weeks immediately following the injury, although after that time he rendered part time service in his employment. Respecting appellee’s employment and payment of salary to him by his employer Governor Johnson testified, in part:

“D35. And you sent him to the Vaughan Insurance Agency — for what purpose?
A. Well, for the purpose of — for the purpose of taking such steps as was necessary to obtain the compensation that he and the Safety Council were entitled to under our policy.
D36. Now, as I understand, the Safety Council, while you were president, paid him his full salary?
A. That’s right. The cancelled checks are there to support that I am sure. I signed the checks, I signed all payroll checks.
D37. And you mentioned you sent him to Mr. Vaughan for the purpose of establishing his claim and the claim of the Safety Council?
A. That’s right.
D38. And to what extent was the Safety Council’s claim to be established?
A. Well, I don’t recall the specific amount of money. What was it, $30 a week.
D39. This statute, I think, takes care of that, but any way, whatever it was, that’s what you had in mind?
A. That’s right.”

The appellee testified that he discussed the situation with all of the directors of his corporate employer, and that he considered that the payment to him of his full salary was in lieu of workmen’s compensation except to the extent that his salary exceeded sums payable as workmen’s compensation. It is clear that Governor Johnson had the same understanding.

Appellee had been informed by a doctor that he would need an operation to obtain relief from the discomfort attendant upon his injury. Apparently appellee desired to avoid an operation if possible; he continued to have chiropractic treatments. He consulted with Mr. Vaughan of the Vaughan Insurance Agency to determine whether the insurance company would pay for the chiropractic treatments. He was advised that these bills would be paid by the insurance company, and they were so paid.

By June, 1962, some three years after the injury, appellee became reconciled to the fact that an operation would be required. He communicated with the attorney-adjuster about the pending operation, and was informed that the matter would be submitted to the home office of the insurance company. Subsequently the attorney-adjuster advised appellee to go ahead with the operation and that the incident expenses would be paid by the insurance company. The operation was performed and the attendant expenses were defrayed by the insurance carrier. It appears that appellee incurred other medical expenses after the operation, and that the bills for these were paid by the insurance company.

Appellee’s post-operative progress was marked by his being bedfast at home for some 14 weeks, following which he was able to get about, first on crutches and then with the aid of a cane. After he was able to discard the cane appellee’s doctors advised him that he had attained the maximum recovery possible, and gave him a percentage evaluation of his permanent disability.

Thereupon appellee told Mr. Vaughan what had been reported to him by his doctor, and suggested that the time had arrived to conclude a final settlement. Mr. Vaughan arranged an appointment between appellee and the attorney-adjuster. It was at that conference between appellee and the attorney-adjuster in June, 1963, that the latter informed appellee that the claim for compensation would not be paid because of the statute of limitation. The claim was not filed with the Workmen’s Compensation Board until March 27, 1964.

It is at once apparent that the claim was not filed within the limitation period of one year; hence the Board’s dismissal of the claim was correct unless some circumstance of record may be said to have tolled the statute. It is plain that the mere filing of the affidavit with the attorney-adjuster did not comply with the statutory requirement for timely filing of the claim with the Board. Cf. Morgan v. Kays Laundry & Cleaning Co., Inc., Ky., 332 S.W.2d 248.

KRS 342.270(1) provides, in pertinent part:

“If the parties fail to reach an agreement in regard to compensation * * * either party may make written application to the hoard for a hearing in regard to the matter at issue * * *. Such application must be filed within one year after the accident, * * * or within one year after the cessation of voluntary payments, if any have been made.”

We have held that the expression “voluntary payments” as used in the statute relates to payment of compensation, not medical bills. Cambron v. Co-Operative Distributing Company, Ky., 405 S.W.2d 687; Pipes Chevrolet Company v. Bryant, Ky., 274 S.W.2d 663; Miles v. General Electric Company, Ky., 280 S.W.2d 529. See 144 A.L.R. 606, et seq.

It is noted, however, that the statute refers to an “agreement” in regard to compensation. In its opinion the Board adverted to the matter of voluntary payments and disposed of it by writing:

“Limitation does not run from the time of injury complained of, where voluntary payments have been made, but it begins to run from the cessation of the voluntary payments. We find no proof in this record which would show that any one other than the Plaintiff understood that his salary payments would be considered as compensation payments.”

We are unable to agree with that observation. The record demonstrates, as the Board noted, that the appellee so regarded the salary payments — but it also is shown that the Council, through Governor Johnson as well as the directors, so regarded the salary payments. Indeed there is no evidence in the record refuting the assertion of appellee that both he and his employer regarded the salary payments as pro tanto payments of compensation for which the Council should be reimbursed when the claim was ultimately settled. We regard the agreement between appellee and his employer as sufficient to satisfy the statute. Cf. Himyar Coal Corporation v. Gordon, 260 Ky. 709, 86 S.W.2d 702 and Little v. Persun Construction Co., Ky., 332 S.W.2d 647, 649. Payment of the medical bills was not payment of compensation but such payment of medical bills, coupled with the un-contradicted proof that the salary payments were to be regarded as compensation, readily distinguishes this case from Cambron v. Co-Operative Distributing Company, Ky., 405 S.W.2d 687 and cases of like import cited above. Since the Board’s quoted finding is not supported by any evidence it is not conclusive upon the court.

Our decision here is not in conflict with Pospisil v. Miller, Ky., 343 S.W.2d 392; Burke v. Blair, Ky., 349 S.W.2d 836, or Cuppy v. General Accident Fire & Life Assurance Corp., Ky., 378 S.W.2d 629. Those cases recognize that in some instances an estoppel may foreclose assertion of the statute of limitation as a bar to a claim, but in them the facts did not warrant the application of such an estoppel. The limitation statute reflects the policy of the law favoring prompt filings of claims as opposed to prosecution of stale claims. Countervailing policies are present too. For example, it is recognized that the law favors amicable adjustment of disputes without litigation; voluntary agreements as to compensation are expressly sanctioned. Liberal application of the workmen’s compensation act is proclaimed as a legislative policy. KRS 342.004. It would do violence to these latter policies of law to require a claimant to file his claim within a year of his injury despite the assurance of his employer that his salary payments are to be considered as compensation and in face of the continued and unquestioned payment of medical expenses during the entire limitation period and long after.

The judgment is affirmed.

      . The statute was amended in 1964, but the effective date of the amendment was subsequent to the filing of the claim at bar.


author: HILL, Judge.

text:
    Clyde A. ROWLAND and wife, Hilda F. Rowland, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    May 5, 1967.
    John C. Lovett, Benton, for appellants.
    Robert Matthews, H. C. Smith, Frankfort, Richard Weisenberger, Paducah, for appellee.
   HILL, Judge.

This is an appeal by motion from a $2,000 judgment in a highway condemnation proceeding to acquire 0.88 of an acre of appellants’ land, located in Calloway County one mile north of Murray, for use in widening and improving US 641 between Murray and Benton.

Appellants have proceeded by motion for appeal apparently under the impression that the amount of the judgment controls a procedure on appeal. It is not the amount of the judgment but the judgment and pleadings that determine the procedure on appeal. KRS 21.070; Rutherford v. Modern Bakery, Ky., 310 S.W.2d 274 (1958); Maslow Cooperage Corporation v. Hofgesang, Ky., 316 S.W.2d 126 (1958); and Commonwealth, Department of Highways v. Barker, Ky., 379 S.W.2d 481 (1964). Inasmuch as appellants’ pleadings (exceptions filed in the county court) are not in the record, we proceed to consider the case on its merits on appellants’ motion for appeal, which was heretofore sustained.

As we interpret appellants’ brief, two grounds are assigned for reversing the judgment. First, appellant contends the trial court erred in directing the jury to disregard appellants’ dwelling (commenced during early planning of the highway and completed during construction); second, the trial court erred in its admonition and instruction not to consider appellants’ access to the new highway.

Before discussing the questions raised, it is considered appropriate to state the material facts. Appellant owned a tract containing 15 acres of land of which 0.88 of an acre was taken by appellee. The tract is bisected by a creek 15 to 20 feet wide. A residence was under construction on the portion on the north side of the creek at the time of the taking. The portion south of the creek was lowland without any improvements. A county road runs adjacent to the north tract and is within about 25 feet of the dwelling.

First to the contention of appellants that the trial court erred in directing the jury “not to consider any enhancement due to the construction of the dwelling, and not to consider any diminution in the value of the dwelling.”. Taken in context, the import of the admonition was not that the presence of the house could not be considered, but that the house could not be treated separately. The court made it abundantly clear throughout the trial that compensation was to be awarded on the basis of the value of the whole property before the taking as against its value afterward.

Appellants argue that appellee was guilty of “bad faith” and “misled” them in connection with the location and construction of a dwelling house on the north (of the creek) tract. Appellants rely on Commonwealth, Department of Highways v. Morris, Ky., 320 S.W.2d 309 (1959) and Sandy Valley & E. Ry. Co. v. Bentley, 161 Ky. 555, 171 S.W. 178 (1914).

The Morris opinion, supra, stands for the proposition that “(t)he inception of condemnation proceedings does not impose any legal restrictions on the land; the owner can sell it, and he is entitled to compensation for buildings or crops started with knowledge of the situation”; that “a con-; demnation proceeding does not impose upon the party seeking to condemn the absolute obligation of taking the property and, because of that fact, * * * so long as a person acts in good faith in an ordinarily prudent manner, he should not be deprived of the value of reasonable improvements made even after the action is instituted.”

It should be kept in mind that the opinion in Morris predated our opinion in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), by four years. Sherrod does no violence to the rule in Morris but sets guidelines for ascertaining “just compensation” by the well-settled “before” and “after” value formula. Of course, either side in a condemnation trial has the right to ask all witnesses whether they considered specific items in arriving at their “before” and “after” values. Indeed counsel for appellants made this statement to the trial court with relation to the condition of the dwelling: “The reason I asked the question your Honor, was to find out whether he did consider the existence of the house in making his estimate.” This comment was made during the questioning of one of appellants’ witnesses, J. O. Patton, who was shortly thereafter asked and answered as follows:

“56. That was my next question. Did you take into consideration any damage to that partially constructed house in making your appraisal ? Or did you limit your appraisal just to the land, itself?
“A. I made an appraisal on the entire property. House and all.
“57. As it was on the date of taking?
“A. Yes.”

We conclude the evidence and instructions correctly followed the rule announced in Sherrod, supra, and that no prejudice resulted to appellants from the trial court’s ruling and admonitions on the evidence offered.

Appellants next claim error in the trial court by the admonition to the jury not to consider the raise of the elevation of the highway along appellants’ property. Here we get to the right of access of property owners through whose property roads are constructed or improved. This right was recently defined in Commonwealth v. Carlisle, Ky., 363 S.W.2d 104, 107 (1963), wherein this court said:

“Coming now to the matter of true access rights, it is our opinion that the only access right the landowner has is a right of reasonable access to the highway system. * * * Access is subject to control under the police power, so the test of reasonableness involves measuring the benefit to the owner against the hazard and danger to the traveling public.”

See also Commonwealth v. Jackson, Ky., 302 S.W.2d 373 (1957).

In the instant case, appellants have access to a county road at the north end of the tract, which is considered “reasonable” access.

Complaint is made of the placing of guardrails along the fill. Here again we have the “benefit to the owner” pitted against “the hazard and danger to the traveling public,” which we conclude was properly resolved against the appellants. It should be recalled that the highway in question is not a limited access highway.

By the construction of the fill, the entrance to appellants’ property was discontinued, but within a few feet therefrom appellants have access to the county road referred to above. In Commonwealth v. Adkins, Ky., 396 S.W.2d 768 (1965), this court said: “Ordinarily this question (reasonableness of access) should be resolved by the court as a matter of law * *

We return to the question of “access” to note the citation by appellants of Commonwealth v. Merrill, Ky., 383 S.W.2d 327, 329, (1964), wherein it is contended by appellants that the rule in Carlisle, supra, has been watered down or modified. In Merrill, it is true the access to Merrill’s remaining lands was specifically condemned for a nonaccess highway, but the opinion in Merrill cites Carlisle and goes further to note that the trial was had before Sherrod. Furthermore, it was said in Merrill:

“The Commonwealth condemned approximately 5,500 feet of valuable frontage on two heavily travelled highways to build its nonaccess bypass and interchange as well as some frontage on Kimsey Lane. In view of the evidence of the value of similar nearby land and considering that the land taken is on the very edge of Henderson and that the commercial desirability of the remaining land is now practically destroyed and its residential adaptability is considerably lessened, we cannot say the award was given as a result of passion or prejudice or that it is excessive as a matter of law.”

It is concluded the present case was tried according to the ground rules approved by this court in Sherrod, supra. The amount of the verdict is within the range of the evidence and will not be disturbed for it does not appear at first blush to have been inadequate or rendered as a result of prejudice or passion.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, STEINFELD and PALMORE, JJ., concur.

OSBORNE, J., not sitting.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Truman RILEY, and Emma Riley, wife, Appellees.
    Court of Appeals of Kentucky.
    May 5, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, Strother Kiser, Lexington, for appellant.
    Dean & Dean, Harrodsburg, Walter Patrick, Lawrenceburg, for appellees.
   CULLEN, Commissioner.

On this appeal by the Department of Highways from a judgment in a highway condemnation suit the principal contention is that the award is excessive.

The department condemned IS acres of the appellees’ farm for right of way for an interstate highway and a service road running at an angle across the farm. This would sever the farm leaving 66 acres, with all the improvements, on one side, and 17 acres of hilly pasture land on the other side. (The IS acres condemned were hilly pasture land also.)

The jury found that the before value was $30,000 and the after value was $14,166, and awarded as damages the difference in these values, $15,834. It is our opinion that the evidence of the landowners’ witnesses, whose value estimates were relied upon by the jury, did not have sufficient probative force to be persuasive of the fact that the taking of IS acres of hilly pasture land, and the severing or isolating of another 17 acres of the same type, reduced the value of the 98-acre farm by more than half, when there remained a unit of 66 acres of good, tillable land with all the improvements. See Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Bond, Ky., 391 S.W.2d 692; Commonwealth, Department of Highways v. Picklesimer, Ky., 397 S.W.2d 159.

The reasons given by the landowners’ witnesses for the diminution in value of the farm were that the farm was severed; the main tract of 66 acres then was over-improved; the new road was on an unsightly fill in view of the house; the edge of the right of way was within 30 feet of the house; and the “garden spot” and several shade trees were taken. This was a modest farm to begin with, valued by the landowners’ witnesses at only $300 per acre before the taking. The evidence does not have the force of conviction that the elements of damage mentioned by the witnesses operated to reduce the value of the farm more than half.

It is our conclusion that the damages are excessive.

We shall discuss two other issues because they may arise again upon a new trial.

The department complains that certain “comparables” cited by the landowners’ witnesses were not even prima facie comparable. However, the compara-bles were farms of similar size in the same county, which we think was enough to make reference to them admissible, leaving it to the department to bring out on cross-examination any points of dissimilarity. See Stewart v. Commonwealth, Ky., 337 S.W.2d 880; West Kentucky Coal Company v. Commonwealth, Ky., 368 S.W.2d 738. In any event, the comparables were used in the instant case to establish “before” value, and the main difference of opinion in the case was as to “after” value, so the use of the comparables was not of any particular harm to the department.

The trial court permitted the landowners’ witnesses to remain in the courtroom while the department’s engineer was testifying, despite the department’s request for exclusion under CR 43.09. One purpose of the rule is to keep a witness from being influenced by the testimony of other witnesses. Clay, CR 43.09. Another is to insure that a witness not be given a chance to adjust his testimony in advance so as to avoid conflict with the testimony of other witnesses. We think the spirit of the rule was not violated in the instant case, because the engineer was merely stating the physical engineering facts, concerning which there was no dispute. Nothing in his testimony was liable to influence any other witness to change his testimony.

The judgment is reversed, with directions for further proceedings in conformity with this opinion.

WILLIAMS, C. J., and HILL, MILLIKEN, MONTGOMERY and STEINFELD, JJ., concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Byron B. RILEY and Hazel Mae Riley, wife, Appellees.
    Court of Appeals of Kentucky.
    May 5, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Strother Kiser, William O. Gilbreath, Lexington, for appellant.
    Walter Patrick, Lawrenceburg, W. Earl Dean, Dean & Dean, Harrodsburg, for appellees.
   HILL, Judge.

The Commonwealth appeals a judgment for $13,126 for 12.28 acres taken out of appellees’ 113-acre farm for use in the construction of the Bluegrass Parkway.

Three claimed errors are assigned as justification for reversing the judgment. First, the amount of the verdict is excessive; second, the comparable sales relied on by the landowners’ witnesses are not comparable to the subject property; and third, the trial court erred in refusing to exclude the landowners’ witnesses from the courtroom during the giving of the testimony by an engineer for the Department of Highways.

Appellees paid $11,000 for the entire farm in 1955, but they contend they made valuable improvements thereon after its purchase. Howéver, no improvements were taken or disturbed, except it is claimed without contradiction that the right of way taken extends so close to appellees’ barn that the doors cannot be used as before the taking. The land condemned divides the farm so that 51.5 acres remain to the south of the right of way and 49.44 acres remain to the north. There is no contention that appellees cannot operate the farm as a unit after the taking. Appellees have reasonable access from one tract to the other and to the highway system by means of a new road which runs parallel with the parkway.

The county court commissioners awarded appellees $9,489, from which both parties appealed to the circuit court.

The lone witness for the Commonwealth testified the difference in the before and after value of the farm was $3,500. The two witnesses for the appellees testified the difference was $18,900 and $16,000.

The amount of the verdict represents 38 percent of the before value of the farm, as fixed by appellees’ most favorable witness, while only 13 percent of the farm was taken and the improvements are all on the remaining land.

From the aerial photographs in the record, the land taken is sparsely covered woodland and the most unproductive land on the farm.

The testimony of appellees’ best witness (Birdwhistell, now deceased) fixed the value of the farm before the takng at $300 per acre. Based on such value, the land taken (assuming it has equal value with the remaining land, which it does not have) would be worth approximately $3,900, which is less than one-third of the amount of the judgment.

We are mindful of the historic province of the jury in the trial of questions of fact. We are likewise cognizant of the fact that in the exercise of the extraordinary right of eminent domain property owners are required sometimes against their will to give up their property; and in the event of a contest in court, the property owner must pay attorney fees out of the amount fixed as “just compensation” for his property. Nevertheless, jury verdicts on disputed questions of fact are not final or unassailable. The verdicts may be reviewed and upset where, as in the present case, the amount at first sight appears excessive and to have been rendered as a result of passion or prejudice. Commonwealth Dept, of Highways v. Tyree, Ky., 365 S.W.2d 472.

Appellants’ second ground for reversal attacks appellees’ evidence as lacking in probative value, for the reason it was based on sales not shown to have been comparable to the property in question. This ground is resolved adversely to appellants’ position in this and a companion case, styled Commonwealth of Kentucky, Department of Highways v. Riley, Ky., 414 S.W.2d 883, decided simultaneously. We repeat the language in the companion case by saying:

“(T)he comparables were farms of similar size in the same county, which we think was enough to make reference to them admissible, leaving it to the department to bring out on cross-examination any points of dissimilarity. See Stewart v. Commonwealth, Ky., 337 S.W.2d 880; West Kentucky Coal Company v. Commonwealth, Ky., 368 S.W.2d 738. In any event, the comparables were used in the instant case to establish ‘before’ value, and the main difference of opinion in the case was as to 'after’ value, so the use of the comparables was not of any particular harm to the department.”

We may likewise reiterate our conclusion in the companion case in answer to appellants’ argument that the trial court erred in permitting the landowners’ witnesses to remain in the courtroom during the giving of the testimony of the engineer for the department in violation of CR 43.09 as follows:

“One purpose of the rule is to keep a witness from being influenced by the testimony of other witnesses. Clay, CR 43.09. Another is to insure that a witness not be given a chance to adjust his testimony in advance so as to avoid conflict with the testimony of other witnesses. We think the spirit of the rule was not violated in the instant case, because the engineer was merely stating the physical engineering facts, concerning which there was no dispute. Nothing in his testimony was liable to influence any other witness to change his testimony.”

The judgment is found excessive and is reversed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, and STEINFELD, JJ., concur.


author: PALMORE, Judge.

text:
    Beecher FRANK, Appellant, v. Roy L. SILVERS, Appellee.
    Court of Appeals of Kentucky.
    May 5, 1967.

      Viley O. Blackburn, Smith & Blackburn, Somerset, for appellant.
    Lawrence S. Hail, Somerset, for appellee.
   PALMORE, Judge.

Beecher Frank appeals from a judgment entered pursuant to a jury verdict awarding Roy Silvers $7,259.85 for personal injuries and damages suffered by Silvers as the result of his being struck by an automobile driven by Frank.

Frank’s only contention is that Silvers was negligent as a matter of law and that .a verdict should have been directed accordingly.

The accident took place a few minutes before 8:00 p. m. on January 3, 1963. The night was dark, but it was dry and there were no inclement weather conditions. Frank was driving southward on the U. S. Highway 27 by-pass around the west side •of Somerset, in Pulaski County. Silvers had been in Somerset all afternoon and was walking home along the Oak Hill Road, which intersects U. S. 27 at a slight angle from northeast to southwest. The intersection was just outside the city limits. There were no marked crosswalks. Oak Hill Road was a 2-lane blacktop road. U. S. 27 was a 4-lane concrete highway 60 feet wide with safety islands in the center. Silvers’ course of travel was southwestward along the left or south side of Oak Hill Road. Frank was driving in the west•ernmost of the two southbound lanes of U. S. 27.

The islands in the center of U. S. 27 were about 12 feet wide, leaving two 12-foot traffic lanes on each side. Silvers first noticed the approaching automobile of Frank at a distance of some 400 feet to the north as he started to walk across the west 24 feet of U. S. 27. Then, according to Silvers, “I started across the highway and I got about halfway across the two southbound lanes, or maybe farther, and I looked "back down, towards the north, down the highway and I saw that he was getting too close upon me, and that’s when I started to run to get out of his way, and as I was running I kept looking to him and he just kept coming it seemed like, towards me all the time.” Silvers estimated that the car was about 60 feet away when he saw it for the second time and that when he was struck he lacked about two feet of reaching the west edge of the pavement. In explanation of why he tried to run across the remainder of the highway instead of stopping where he was, Silvers said in substance that he could not tell which way the car might turn.

Silvers admitted he had consumed a half pint of cut alcohol in town during the early hours of the afternoon, but denied being intoxicated. A blood sample taken from his arm shortly after the accident showed an alcoholic content of 0.15 per cent.

Frank’s vehicle was a 1962 model Valiant station wagon, which is smaller than the average automobile and is in the category generally referred to as “compact” cars. The posted speed limit on U. S. 27 in the area of the Oak Hill Road intersection was 45 m. p. h. Frank was driving at 40 to 45 m. p. h. and had his headlights deflected because “that is a sort of a restricted zone there.” He judged that he could see 500 to 600 feet ahead under normal unobstructed conditions, but on this particular occasion a car had entered the intersection from the east on Oak Hill Road and had stopped between the safety islands with the beam of its headlights projecting across the southbound lanes of U. S. 27. This car was being driven by the witness Phillips, who was waiting for Frank to pass before continuing across U. S. 27. When Frank was about 400 feet north of the intersection he saw a man appear on foot in front of the Phillips vehicle and he took his foot off the accelerator, but then the man disappeared into the darkness and Frank, thinking he had merely gone around from one side of the Phillips car to the other, resumed his speed. When he had approached within 150 to 120 feet of the point of the accident he suddenly became aware of Silvers walking in the eastern lane of the two southbound lanes, “the lane nearest the island, he was coming across this lane in almost a lurching, staggering fashion, I saw him take a couple of steps, and then he was in the center of that left hand lane and after taking a couple of steps, he broke into a sprint, a run,” etc. Frank applied his brakes and skidded, striking Silvers with the right front portion of his automobile at a point in the intersection which Frank estimated to be five feet from the west margin of the U. S. 27 pavement. According to Frank, the point of impact was about in the middle of Oak Hill Road as extended through the intersection of U. S. 27.

As measured by a state trooper upon arrival at the scene of the accident, Frank’s tire marks were 92 feet long and began approximately 60 feet north of the intersection. They were straight, indicating that the vehicle did not turn or swerve from its direct course. The fair import of Frank’s testimony is that he did not have time to do more than jam on the brakes, after which the car was locked in position insofar as the direction of its movement was concerned.

According to a map prepared by a registered engineer, Oak Hill Road appears to be about 25 feet wide except at the four corners of its intersection with U. S. 27, which are rounded. The witness Phillips, who was stopped between the safety islands on U. S. 27 preparatory to continuing westward on Oak Hill Road, first observed Silvers when he heard the friction of Frank’s tires on the pavement. Silvers was then midway across the southbound lanes of U. S. 27 and was starting to run. He was hit by the car at a point two or three feet from the west edge of the U. S. 27 pavement. Frank’s car skidded only five or six feet after striking Silvers and came to a stop within 20 to 30 feet. Silvers was not in the beam of Phillips’ headlights, but “just to the left of them a little bit.” Phillips testified that Silvers had not crossed in front of his automobile. He said also that there was nothing about the manner in which Silvers ran to indicate that he was drunk.

During the course of his testimony under cross-examination Silvers was required to draw a line depicting on a photograph the course of his travel across the intersection. From a comparison of the photograph with the engineer’s diagram heretofore mentioned, the photograph appears to have been taken from a rather deceptive angle, in that a straight line drawn from the southeast corner to the southwest corner of the intersection appears to run at about a 45-de-gree angle from U. S. 27, and at first glance gives the impression of running diagonally through the intersection. The center line of Oak Hill Road does not follow a straight course through the intersection, because on the west side of U. S. 27 the road is offset several feet southward. Hence a person walking across U. S. 27 from east to west along a straight course projected from the south line of Oak Hill Road on the east side of U. S. 27 would cross the west line of U. S. 27 a few feet north of the south line of Oak Hill Road as it exists on that side. This makes it distinctly possible that Silvers actually was in or near the middle of Oak Hill Road, as Frank contended, without being within the beam of the headlights of the Phillips automobile. However, a careful examination of the photograph marked by Silvers, coupled with his testimony in that connection, indicates to us that he was attempting to draw a line from the southeast corner to the southwest corner of the intersection, which would have put him within the protected area of an unmarked crosswalk if KRS 189.-570(2) is applicable.

With exceptions not pertinent to this case, subsection (2) of KRS 189.570 provides “where traffic control signals are not in place * * * the operator of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked cross walk or within any unmarked cross walk at an intersection. If necessary in order to yield the right of way, the operator shall slow down or stop.” Conversely, subsection (4) of the same statute provides that a pedestrian “crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.”

Each of the parties asked for an instruction to the effect that it was the duty of the other to yield the right-of-way. Both were refused. Silvers’ request for an instruction on last clear chance likewise was refused. The instruction on Frank’s duties enumerated the usual requirements as to lookout, speed, control of the automobile, and ordinary care. The contributory negligence instruction required Silvers to remain out of the way of the approaching automobile if it was so near the intersection as to cause a danger and a hazard to him, and it held him to the standard of care ordinarily expected of a sober person.

Frank contends that KRS 189.570(2) does not apply outside the corporate limits of cities. The basis for this argument is the following passage from Kentucky Virginia Stages v. Tackett’s Adm’r, 294 Ky. 189, 171 S.W.2d 4, at 9 (1943) :

“We know of no statute or rule of law requiring a pedestrian to yield the right of way to a motor vehicle except KRS 189.-570 * * * which has no application to country roads or villages where there are no intersections or marked crosswalks.”

If that proposition were correct, it seems to us that the argument would weigh against Frank rather than in his favor, because his position is that the automobile had precedence over the pedestrian, whereas in the absence of the statute neither would have had a superior right over the other. Pryor’s Adm’r v. Otter, 268 Ky. 602, 105 S.W.2d 564 (1937). As we view it, the latter situation is the very thing the statute was intended to avoid. Its purpose was and is to make it clear that on the open road and between intersections, where no crosswalk has been established for pedestrians and so marked, pedestrians must yield to vehicular traffic, but at highway and street intersections, and at all places where the public authority has marked off intersecting walkways, if vehicle and pedestrian are proceeding on a collision course the vehicle must yield. “Where the pedestrian would probably reach the meeting point first under those conditions, he has the right of way,” and “if they would reach the point simultaneously — the statute requires the automobile to yield to the pedestrian.” Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498, 502 (1948).

The substance of what is now KRS 189.-570 was added to the law of Kentucky by Chapter 106, § 13 (17)-(22), Acts of 1938. Before that time the respective rights and duties as between a pedestrian and the operator of a motor vehicle in the highway were governed by the common law principles of ordinary care and a statute (Ky. Stat. § 2739g-35) requiring the motorist to operate his vehicle in a careful manner “with due regard for the safety and convenience of pedestrians and all other vehicles or traffic upon such highway.” This statutory duty remains in force through KRS 189.290 but is supplemented by KRS 189.570. For an excellent discussion of the effect of the 1938 amendment see Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498, 502 (1948). See also Pryor’s Adm’r v. Otter, 268 Ky. 602, 105 S.W.2d 564 (1937), involving an ordinance which contained provisions similar to those which were later enacted by the General Assembly in 1938.

KRS 189.570 was assumed without question to be applicable in Couch v. Holland, Ky., 385 S.W.2d 204 (1964), and Myers & Clark Company v. Layne, Ky., 312 S.W.2d 463 (1958), both of which dealt with accidents that did not occur in the corporate limits of any city. Though it could scarcely be denied that the “unmarked crosswalk” aspect of the statute may place a burden on the unsuspecting motorist who suddenly encounters an intersection in the country, we do not have any tenable basis for saying it cannot mean what it plainly says.

When not so marked, what is a crosswalk? In Myers & Clark Company v. Layne, Ky., 312 S.W.2d 463, 465 (1958), it was said to be a place where pedestrians customarily cross. The later case of Clark v. Smitson, 346 S.W.2d 780 (1961), in accordance with the express terminology of the statute, restricted the definition to intersections, it being observed that a motorist can reasonably be expected to anticipate that pedestrians may be encountered at intersections. This being so, it is our conclusion that there is a crosswalk at every intersection of public roads or highways, and that this is the intended meaning of the statute. As it is common knowledge, every motorist is presumed to know that pedestrians do use the margins of public streets and highways as avenues of travel, that to some degree at least all roadways are so used, and that when such pedestrians come to intersections they must cross. The motorist’s duty in approaching an intersection cannot be made to depend on the number of pedestrians who customarily cross there, because that often will be beyond his knowledge. His duty and the corresponding right of the pedestrian must be premised on the existence of the intersection, whether it be used by few or many.

If Silvers was reasonably within the confines of a course a pedestrian would be required to travel in crossing U. S. 27 along the south side of Oak Hill Road and, when he started across the west or southbound traffic lanes, would normally have reached a point in Frank’s line of travel before or at the same time as the Frank vehicle, under the decisions already cited he had the right-of-way. Under the evidence the jury could reasonably have resolved each of these factual questions either way. Moreover, as pointed out in the same decisions, the right of neither party is absolute, so that even if the speeds and distances were fixed and certain, it would not be consonant with the principles of ordinary care to eliminate the human equation. For example, let it be assumed that in actuality the Frank vehicle would have intercepted Silvers’ line of travel an instant before Silvers would or should have arrived at the same point, but because of the small size of the Frank automobile, coupled with its headlights being deflected, the car appeared to be a considerably greater distance away than in fact it was when Silvers, judging that he had time to cross without incident, stepped forth from his place of safety on or near the island. Could it be fairly held as a matter of law that Silvers’ judgment was negligent? We think not. And if he was not negligent at that time, it may not have been unreasonable for a jury to conclude that he should not be held responsible for having created the emergency with which he was confronted upon arriving at a position of peril.

Even if it were conceded that Silvers was contributorily negligent as a matter of law, we are of the opinion that he was nevertheless entitled to have the question of last clear chance submitted to the jury. Cf. Riley v. Hornbuckle, Ky., 366 S.W.2d 304, 307 (1963).

Our conclusion is that the trial court should have instructed on KRS 189.570, both ways, but that under no theory could Frank have been entitled to a directed verdict.

Frank’s motion for new trial stated eight grounds, including the trial court’s failure to instruct as requested and its refusal to direct a verdict. On this appeal only the latter objection is pursued. Hence any objection to the form of the instructions, short of a directed verdict, is waived. Halleron v. Carrithers Creamery, Ky., 239 S.W.2d 92 (1951).

The judgment is affirmed.

WILLIAMS, C. J.; and HILL, MILLI-KEN, OSBORNE and STEINFELD, JJ., concur.


author: MILLIKEN, Judge.

text:
    JACKSON & CHURCH DIVISION, YORK-SHIPLEY, INC., Appellant, v. Croslin MILLER, d/b/a Miller Plumbing & Heating Company et al., Appellees.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Earle T. Shoup, Paducah, for appellant.
    John C. Lovett, Richard H. Lewis, Benton, George R. Effinger, Paducah, for appellees.
   MILLIKEN, Judge.

This is an appeal from a final order under CR 54.02 which dismissed the third-party complaint filed by the Jackson & Church Division, York-Shipley, Inc., im-pleading other party defendants in an action brought against it and the Hoe Supply Company by the Trustees of the Benton Church of Christ for smoke damage allegedly caused the Church by a defective or defectively installed furnace part. The Hoe Supply Company had supplied the defective part which was manufactured by the Jackson & Church Division, according to the complaint. The third-party complaint of Jackson & Church sought to implead as third-party defendants the appellees, Miller Plumbing & Heating Company and Minneapolis-Honeywell Regulator Company, Inc., or Honeywell, Inc., as installer and manufacturer, respectively, of the allegedly defective part. This is an appeal from the order dismissing the third-party complaint.

The dismissal was based expressly and solely on the ground that the defendant as third-party plaintiff could not bring joint tort-feasors into the action for the purpose of contribution or indemnity prior to the time a judgment was rendered against the defendant and it had satisfied the judgment. Consolidated Coach Corporation v. Wright, 231 Ky. 713, 22 S.W.2d 108 (1929); Brown Hotel Company v. Pittsburgh Fuel Company, 311 Ky. 396, 224 S.W.2d 165 (1949); Campbellsville Lumber Company v. Lawrence, Ky., 268 S.W.2d 655 (1954).

The Rules of Civil Procedure became effective subsequent to the trials of the above cases and now provide in CR 14.01 that “a defendant may move for leave as a third-party plaintiff to assert a claim against a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” CR 14.01.

Rule 14.01 is similar to Federal Rule 14(a), and the latter has been interpreted to permit the filing of a third-party complaint in such a situation as is here presented. Jeub v. B/G Foods, Inc. (D.C.Minn.1942), 2 F.R.D. 238; Greenleaf v. Huntington & Broad Top Mountain Railroad & Coal Co. (E.D.Pa.1942), 3 F.R.D. 24; Vaughn v. Terminal Transport Co., Inc., (E.D.Tenn.1957), 162 F.Supp. 647; Bosin v. Minneapolis, St. Paul & Sault Ste. Marie R. Co. (E.D.Wis.1960), 183 F.Supp. 820; Huggins v. Graves (E.D. Tenn.1962), 210 F.Supp. 98. Also see Moore’s Federal Practice, Second Edition, Sections 14.08, 14.11; Federal Rules of Civil Procedure, rule 14, 28 U.S.C.A., notes of decisions 31-46; 11 A.L.R.2d 228.

According to Moore’s Federal Practice, Second Edition, third-party practice, or impleader, is a relatively recent procedural device in many American jurisdictions, but its roots go deep in the common law and had come to be a recognized part of American procedure in several states before the adoption of the Federal Rules in 1938. (Moore, pages 431 — 491). “The general purpose of Rule 14 is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him and a judgment in his favor against a third-party defendant.” (Moore, Sec. 14.04, page 501.) He states that “ * * * from the very first, the granting of the motion to implead an additional party was considered to rest in the sound discretion of the court. In exercising its power of discretion the court could bear in mind the purpose of Rule 14 to avoid circuity of action and to settle related matters in one litigation as far as practicable * * *. The court could properly deny impleader when it would introduce an unrelated controversy or unduly complicate the case to the prejudice of the plaintiff.” (Moore, pages 503-505.)

In reversing the present judgment we do so because the trial court declared that its order “is not entered in the exercise of any discretion,” but is posited expressly and solely on the premise, as a matter of substantive law, that a party defendant cannot base a third-party complaint on a prospective claim for indemnity or contribution, but must wait until he has satisfied a judgment rendered against him, then sue for indemnity or contribution. Consolidated Coach Corporation v. Wright, 231 Ky. 713, 22 S.W.2d 108 (1929) and other cases of similar import. What we are trying to make clear is that CR 14 provides procedural machinery for determining in one action whether a right to contribution or indemnity may prove to exist, and it does not change the substantive law on the subject. There can be no actual recovery of contribution or indemnity until there is a paid judgment to be contributed to or indemnified against.

We consequently refer the case to the trial court for the exercise of its sound discretion in determining whether permitting the impleading of other parties would avoid circuity of action and facilitate the settlement of related claims in one lawsuit as far as practicable without unduly complicating the case to the prejudice of a party. In other words, the trial court should permit the impleading of other parties in such a situation unless it concludes that doing so would so complicate the lawsuit that it would tend to prejudice the rights of any of the litigants. In Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137 (1965), we discussed some of the trial problems when the rule is applied.

The judgment is reversed.

All concur.

OSBORNE, J., not sitting.


text:
    Billy V. JOHNSON, Appellant, v. Billy Gene JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Joe Hobson, Burnis Martin, Prestons-burg, for appellant.
    Harris S. Howard, Howard, Francis & Howard, Paul E. Hayes, Prestonsburg, for appellees.
   MILLIKEN, Judge.

The issue here is whether it was proper for the trial court to enter a summary judgment for the defendant in a negligence case.

This is an action for personal injuries sustained in an accident while appellant was a passenger in an automobile owned and operated by appellee, defendant below. A third party complaint was filed by the appellee against Otis Hayes, the operator of another car, seeking recovery for any amounts that might be adjudged against appellee.

The trial court, on a motion for summary judgment, found that appellant was con-tributorily negligent and had assumed the risk of injury as a matter of law.

The accident occurred on August 12, 1962. Appellee had picked up appellant at his home around midnight. Both reside near Wheelwright in Floyd County, and they proceeded to drive approximately twenty miles to Martin where the appellee purchased some beer. They then drove to Dewey Lake near Prestonsburg some 15 miles from Martin and approximately 35 miles from their home. There they drove around for some time. During this period the beer was consumed and, as appellant deposed on discovery, appellee drank as many as five or six beers while appellant himself had several. They then drove back towards Wheelwright, stopping along the way at Allen and then at a friend’s home. Appellant testified in his deposition on discovery that appellee was driving between 85 and 90 miles per hour, on and off, the 30 to 35 miles from Prestonsburg to where the accident occurred near Pike. He at no time requested appellee to slow down or to let him out of the car. At the time of the accident, between 4:30 and 5:00 a. m., appellee was attempting to pass another car driven by Otis Hayes which allegedly speeded up when appellee started around it. Appellant estimated that they were driving anywhere from 85 to 90 miles an hour, and stated that when they got around the Hayes car and cut back over to the right-hand lane they may have contacted Hayes’ car. Appellee lost control of his car, and the accident resulted when the tires on the right side of his car went off the edge of the road. Appellee also crossed a double yellow line while attempting to pass the Hayes car.

Appellant was contributorily negligent as a matter of law if he rode in the car with appellee knowing him to be under the influence of intoxicating liquor, or if he did not protest the reckless driving of ap-pellee and ask to be let out of the automobile if the protest went unheeded. Noble v. Jones, Ky., 392 S.W.2d 449 (1965) ; Kavanaugh v. Myers’ Adm’x, Ky., 246 S.W.2d 451 (1952). See, also, Ford v. McQueary, Ky., 239 S.W.2d 486 (1951). Although there was no specific finding that appellee was drunk, it is sufficient to say that appellant tacitly admitted that he was con-tributorily negligent and assumed the risk of injury when he continued to ride with appellee without protest while the latter was driving at speeds of 85 to 90 miles per hour after drinking a substantial amount of beer. The tenor of appellant’s deposition throughout impresses us as a frank statement of what actually occurred, so much so in fact that no effort of skilled counsel could nullify its effect. The speeding was the proximate cause of the accident, for it is clearly evident that if he had not been racing past this Hayes automobile the accident would not have occurred.

Appellant stated in an affidavit which he filed along with his motion for a new trial that some of the statements he had made at the time of his deposition on discovery were incorrect on account of his “confusion, mistake and misunderstanding, and to asking of other questions without a chance for explanation and the event happening over eighteen months before caused same.” Specifically, appellant stated in his affidavit that the only time the car was traveling between 85 and 90 miles an hour was at the time the other car was being passed and that otherwise his car never approached that speed or was driven recklessly; and also that they had only six cans of beer between them which they drank before they reached Allen. Appellant should have submitted the affidavit before the summary judgment was granted, for he had an obligation to show that he could produce evidence on the trial which would create an issue of fact. Tarter v. Arnold, Ky., 343 S.W.2d 377; Mills v. Reserve Life Insurance Company, Ky., 335 S.W.2d 955; CR 56.03.

Since, at the time summary judgment was granted, there was no genuine issue as to any material fact, this Court concludes that the judgment was not contrary to the law and that the trial court did not abuse its discretion in granting the summary judgment for we conclude that, on the basis of the plaintiff’s deposition, reasonable men would have to agree that the plaintiff was chargeable with knowledge of the danger of riding with the defendant and assumed the risk thereof. Biddle v. Biddle, Ky., 414 S.W.2d 136, decided February 24, 1967.

The judgment is affirmed.

All concur.

HILL, J., not sitting.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Lester R. HUNT et al., Appellees.
    Court of Appeals of Kentucky.
    May 5, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, Charles W. Huddleston, Dept, of Highways, Bowling Green, for appellant.
    James H. Lucas, Harlin, Parker, Ricketts, Lucas & English, Bowling Green, for ap-pellees.
   CULLEN, Commissioner.

In this highway condemnation case the Department of Highways is appealing from a judgment awarding the appellee property owners $22,500. The appellees’ farm, near Bowling Green, originally consisted of 165 acres. The highway right of way cut across the farm, taking 20.52 acres. This left 41.48 unimproved acres on one side of the right of way, and 103 acres, with all of the improvements, on the other side.

The department contends that the verdict is excessive. This is on the theory that no substantial diminution in value of the farm reasonably could be attributed to the severance; the only diminution was the value of the land actually taken; and that value was only about $11,000; or half the amount of the verdict.

We think the argument is not tenable. It was reasonable to attribute a substantial diminution in value to the physical severance of the farm, and the landowners’ witnesses did give importance to that factor. The fact that the severed 41.48 unimproved acres were no longer conveniently accessible, and that the improvements, originally designed and located for operation of a 165-acre compact unit, no longer were advantageously situated, were mentioned as reasons for diminution in market value. Also, new drainage and water problems were cited as value-diminishing factors.

The estimates by the state’s witnesses of before and after values showed a diminution in value of approximately 18 percent. The amounts fixed by the verdict as before and after values were substantially higher than those estimated by the state’s witnesses (but within the range of values estimated by the landowners’ witnesses); however, the percentage of diminution in value was substantially the same — 18 percent. This would indicate that if the before value found by the jury is supported by the evidence, the amount of damages found by the jury is not excessive, because it represents the same extent of diminution as testified to by the state’s witnesses.

The only attack upon the landowners’ evidence of before value is that the witnesses did not support their estimates by evidence of comparable sales. However, our rule is that evidence of comparable sales is not necessary to support an estimate of value unless the estimate without such support appears on its face to be palpably extravagant. See Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Arnett, Ky., 390 S.W.2d 187. The land here in question was very high quality farm land and in our opinion the estimates by the landowners’ witnesses, even without support of comparable sales, had sufficient probative value to sustain the jury’s finding of a before value of $733 per acre.

Upon close analysis, it appears that the department’s argument in this case, as to why the verdict is excessive, is predicated on the old concept of separation of “taking” damages from “resulting” damages which was abolished in Commonwealth, Department of Highways, v. Sherrod, Ky., 367 S.W.2d 844.

It is our conclusion that the award of damages is not excessive and is supported by sufficient evidence.

The department contends that error was committed in the refusal of the trial court to strike the testimony of one of the appraisal witnesses for the landowners. The principal ground advanced for striking his testimony was that he “price-tagged” damage factors. We think it is unnecessary for us to pass on the question of whether he did violate the rule against price tagging, or the rule against separate fixing of “taking” damages and “resulting” damages, because his testimony was merely cumulative and clearly carried no particular weight with the jury. His estimate of before value was lower than that found by the jury and lower than that of the other of the landowners’ witnesses. His estimate of diminution in value was the highest of the three witnesses for the landowners, but the jury fixed the diminution some $4,000 below the lowest estimate of these witnesses. Obviously, if error was committed in not striking his testimony, it was not prejudicial.

The judgment is affirmed.

All concur.