(dissenting).
I respectfully dissent because I feel that the majority opinion interpretation of KRS 189.450 is wrong as to what constitutes “the main traveled portion of a highway”.
The construction placed on “highway” therein is that it refers only to a roadway outside the prescribed limits of a city or town. This interpretation is based on the 1930 opinion in Kimble v. Standard Oil Co., 235 Ky. 169, 30 S.W.2d 890, 891, which made a distinction between highways outside cities and city streets. The basis for the distinction is that “highways outside cities have a berm or shoulder on either side of the paved or main traveled portion of the highway” while “city streets are usually paved from curb to curb, and all of the street is ordinarily used for travel by motor vehicles”. This, obviously, is not a valid distinction today, and is so recognized by the broad definition of “highway” in KRS 189.010, enacted in 1942 and re-enacted in 1956, which is, in part as follows:
“As used in this chapter, unless the context requires otherwise: * * *
“(2) ‘Highway means any public road, street, avenue, alley or boulevard, bridge, viaduct or trestle and the approaches to them.”
Under this definition of “highway”, no distinction is made between that portion of a roadway bearing a federal or state route designation which may be located outside the city limits and the portion within the city limits. To illustrate the fallacy of the distinction in the instant case, one only has to contemplate the difference there might be on either side of the invisible line marking city limits across a highway, or the difference between built up residence or business areas outside and inside city limits, or whether a highway passing through an unincorporated village or town is a highway or a street within the meaning of the majority opinion. It seems that the distinction is based on factors unrelated to the problem to be solved by KRS 189.450, and is contra to the express provision of the statute which includes “street”, etc.
The distinction based on the type of construction of the road as used in the Kimble case is not adequate. There are highways passing through urban areas either as one-way or through streets, boulevards, freeways, expressways, or whatever term is used, in which the entire paved surface of the road is used as a main traveled highway without any parking, while in other urban areas a portion of the highway surface may be used or designated for parking. Also, there are highways passing through open country where no shoulder or berm is present, or where a curb may be on either or both sides of the paved surface. It is felt that the proper rule is to submit to the jury, as was done in the instant case, the question of whether the obstructing vehicle was located on the main traveled portion of the highway as determined by the usage of the traveling public, with the burden being on *256the operator of the parked vehicle to show that it was not. This is the tenor of KRS 189.450, as recently interpreted in Banner Transfer Co. v. Morse, Ky., 274 S.W.2d 380.
KRS 189.450 seeks to prevent the highways from being obstructed by vehicles and to promote the convenience and safety of the traveling public in its use of the highways by assuring it of a way free from obstruction. It is the traveling motorist who pays the taxes to maintain the highways, not the fellow who parks his car on the street. In the interest of safety, the motorist is entitled to drive on the highway, knowing that his way will be clear and that there will be no obstruction blocking the way, hidden by darkness or weather conditions, curve, or brow of a hill. The roadways, whether called highways or streets, are built for travel, not parking. The safety and convenience of the traveling public should be given priority, especially in these days of high powered motor vehicles and fast driving.
This construction of KRS 189.450 is in harmony with KRS, Chapter 177, entitled “State and Federal Highways, etc.”, enacted in 1942. By this act, all “city streets or portions thereof, including viaducts and bridges, over which state and Federal highways are routed” are made a necessary and integral part of the State Highway System of roads. Such streets were declared to serve a state purpose and to be for the general benefit of the state. Their maintenance became a state function. KRS 177.041. The State Commissioner of Highways is authorized to assume responsibility for regulating traffic over such streets. KRS 177.046. The rule of the Kimble case, upon which the majority opinion is based, has been abrogated and rendered obsolete by the enactment of the above statutes and by modern traffic and highway development.
In the instant case, there was evidence in behalf of appellee that appellant’s truck was parked on the main traveled portion of Kentucky Highway No. 15, a part of North Main Street in Hazard. The collision occurred about 5 p. m. on December 29, 1954. The weather was rainy and foggy. Visibility was bad because of the weather and oncoming darkness. Under these circumstances, appellant had stopped his truck, with inadequate lights, on the surface of the highway used for traveling at a place not designated for parking and where such a stopped vehicle would not normally be anticipated.
The jury was the judge as to whether this was a proper stopping on the highway under the instruction based on the statute. Its verdict should be upheld. The burden was on appellant to bring himself within one of the exceptions in KRS 189.450. The failure of the city to prohibit parking there is no valid exception under the statute and ignores its purpose and intent to prevent all stopping on the main traveled portion of the highway except under the named circumstances.
MILLIKEN, C. J., joins in this dissent.