Woosley v. Smith , 471 S.W.2d 737 ( 1971 )

OSBORNE, Judge

(dissenting).

I dissent from the majority opinion in this case because I believe it to be contrary to the decision of this court in Ashton v. Roop, Ky., 244 S.W.2d 727, and many other cases of like import. I believe these cases require the question of proximate cause in cases such as this to be submitted to the jury.

There are so many varying circumstances under which an automobile may be stopped and many varying conditions such as the weather, whether it is daylight or dark, etc., that a court should not say that such stop-pings are negligence per se.

In Crawford Transport Company v. Wireman, Ky., 280 S.W.2d 163, we held that a motorist who collided with a large transport truck parked across the highway when attempting to enter a private driveway was not entitled to a directed verdict since the truck was not one stopped or parked under the terms of the statute but was “in operation.”

In the case before us, Mrs. Smith’s car was still in operation in that she was in it, it was in gear and the motor was running. I would affirm the judgment.