The writer dissents from the majority on two grounds: (1) There was no substantial evidence that appellee, Mrs. Campbell, was negligent, and (2) the deceased, Mary Helen Strode, was guilty of contributory negligence as a matter of law.

The effect of this decision is to allow the jury to speculate and imposes upon the operator of an automobile on an open concrete highway duties which are not prescribed by statute and are unreasonable. Mrs. Campbell testified that at the time of the impact she was moving at forty miles an hour. The only other evidence which might contradict her is the fact that she traveled some 300 feet after striking the deceased. Though it might be corroborative of other evidence of excessive speed, it is wholly insufficient in itself to establish that fact. *Page 532

To determine the initial speed of a vehicle by the distance it travels, without skidding, after striking a pedestrian is entirely speculative. In such a moment of emergency the reactions of drivers may be entirely different. This is especially true when the impact caused the hood of Mrs. Campbell's car to spring up in her face. Such a sudden unforeseen experience might cause the best of drivers to lose control of his automobile for a few seconds, within which time it might travel, three, four or five hundred feet. To create an issue of speed on the single item of evidence with respect to the distance traveled after the accident is to give to this evidence a significance not consonant with practicalities.

The majority of the Court are apparently of the opinion that even if Mrs. Campbell was driving at the speed about which she testified, it was too fast in view of the fact that she was passing a bus. This imposes on the driver of an automobile on an open highway at night the duty of discovering that an oncoming vehicle is a bus, which might have discharged a passenger who would be running across the road without any care for his own safety. It is common knowledge that it is very difficult at night to determine the type of vehicle which is approaching on a highway. Trucks and busses have similar body marker lights. Even so, these are often not discovered until the meeting vehicles are almost abreast of each other.

It is the duty of the operator of an automobile to keep a lookout ahead. His principal attention is, and should be, focused on the traffic lane he is following. To require him to make a close inspection of approaching vehicles hidden behind headlights on the opposite side of the road would require him to neglect his primary duty of keeping a lookout ahead. If, however, a driver should determine when he is about to pass a bus, there is no statutory or other duty upon him to slow down sufficiently to stop immediately upon passing, or to sound his horn.

Under the circumstances shown in this case, there is no practical reason why Mrs. Campbell might anticipate the appearance of a pedestrian crossing to her side of the road. Yet the theory of the majority requires her to slow down sufficiently while passing the *Page 533 bus to stop immediately if someone blindly runs across in front of her. Otherwise, this accident could not have been avoided, regardless of her speed. To say that the operator of an automobile must be prepared to stop immediately upon passing any vehicle at night on an open highway which has side marker lights would tie up traffic all over the state. Under such theory, it would take a person five to six hours to drive from Frankfort to Louisville, in view of the constant stream of trucks and busses on U.S. Highway 60.

Assuming, however, that Mrs. Campbell was guilty of some negligence, it is impossible on the evidence in this case for any reasonable person to reach the conclusion that the deceased herself was not contributorily negligent. KRS 189.570(4) makes it the duty of a pedestrian in the position of the deceased to yield the right-of-way to vehicles upon the highway. Clearly she did not yield the right-of-way. Every bit of evidence in the case points to the inevitable conclusion that she emerged from behind the bus and started across the roadway without taking any care for her own safety. We have recently held that a pedestrian, attempting to cross an open city street between intersections without observing the approach of an oncoming vehicle which he must have seen if he had looked, was guilty of contributory negligence as a matter of law. Tarter v. Wiggington's Adm'x, 310 Ky. 393, 220 S.W.2d 829.

The same principle must be applied here. Yet the majority opinion completely ignores this question of contributory negligence. It is in the case by pleading and is completely established by the testimony and the circumstances of this accident. There is simply no scintilla of evidence upon which a jury could decide that the deceased complied with her statutory duty or exercised any care whatsoever. Therefore, admitting the soundness of every conclusion in the majority opinion, which I cannot do, Mrs. Campbell was entitled to a directed verdict because of the obviously contributory negligence of the deceased.

I, therefore, most respectfully dissent.

Judge Cammack concurs in this dissent. *Page 534