179 Ky. 333 | Ky. Ct. App. | 1918
Opinion oe the Court by
Affirming.
Alonzo Williams, administrator, brought this suit against the Chesapeake & Ohio Railway Company and its conductor and engineer, to recover damages for his death. From a verdict and judgment in favor of plaintiff for $1,000.00, the defendants appeal, and plaintiff prosecutes a cross-appeal. Thé refusal of the trial court to give a peremptory is the only ground urged by defendants for a reversal.
South Ripley,, -which is a 'station on the railway company’s line, lies opposite the town of Ripley, Ohio. It is a regular stop for' accommodation trains but through fast passenger trains do not stop there. Travel between Ripley and South Ripley is by a public ferry across the Ohio river and a public road from the river which crosses the company’s tracks about 330 feet east of the station and then turns west and runs by the station. The C. & O. transfer company, which has no connection with the railroad company, operates an omnibus between the town of Ripley and the station. At the time of the accident Williams was the driver of the bus. The bus was about 10% feet long. The length of that part occupied by passengers was about 7 feet. The front, which was “kind of boxed in,” was about 3% feet in length. The driver sat on a seat about 18 inches deep and overhanging the seat was a roof for his protection. In the bus was a passenger. When the bus reached the crossing it was struck by the railway company’s west-bound passenger train No. 5. Williams and the passenger were instantly killed. The train in question, which' was not scheduled to stop at South Ripley, was about one and one-half hours late, and from ten to fifteen minutes ahead of an accommodation train which did stop at South- Ripley. ' The bus was on its way to the railway station to meet the accommodation train.
But it is insisted that the decedent did not occupy the position of an ordinary traveler, hut, being in charge of a conveyance operated as a common carrier, he owed to the passenger the duty of exercising the highest degree of care for his safety, and therefore the duty to keep a lookout for the train, which he could not have failed to discover had he performed this duty. We perceive no reason why, as between the railroad and the driver a distinction in the degree of care required should be made between the driver of a private vehicle and-the driver of a' vehicle used' for the transportation of the .public. We therefore conclude that the decedent did not owe the railroad company the duty to keep.a lookout for the train, but' merely the duty of exercising ordinary care to learn of its ápproach and keep out of its way, and that, under the facts of this case, this wás a question for the •jury. .
On the cross-appeal it is insisted that the trial court erred in refusing to give several instructions offered by plaintiff. Without setting out these instructions, it is sufficient to say that they were properly refused'because the given instructions fully covered the law of the case.
Since only general damages were sought by plaintiff and allowed by the jury, we are not at liberty to grant a new trial on account of the smallness thereof, in the absence of some other prejudicial error in the record. Civil Code, section 341; Conder, et al. v. Ledford, 167 Ky. 137, 180 S. W. 77; Rossie v. Jewell Jellico Coal Co., 157 Ky. 332, 163 S. W. 220; Schmidt v. Kentucky River Mills, 142 Ky. 80, 133 S. W. 1142.
Judgment affirmed.