135 Ky. 506 | Ky. Ct. App. | 1909
Affirming.
This is an appeal from a judgment of the Boyd circuit court, entered upon a verdict against the appellant, Chesapeake & Ohio Railway Co., in favor of the infant appellee, Wardie L. Patrick, for $2,000, in damages for injuries to his person from a collision with one of appellant’s trains, alleged to. have been caused by .the negligence of its agents and servants in charge .thereof. At the time of-receiving his injuries appellee was 16 years of age, and the action was instituted by himself and next friend. The facts were, that in December, 1905, appellee and a companion, Charles Picklesimer, a year his junior, went to the city of Ashland from their home in Magoffin county, seeking employment. After a few days’ search they found work at the mill of the .Herman Lumber Company. On account of a sleet and snow that fell, they were denied work one day at the mill, and upon again going to .the mill in the afternoon, about 1 o’clock, they were advised that there would be no work for them there that day. After stopping for a while on Twenty-Seventh street, where a school building was being erected, .they started to return to the house at which they were boarding on Thirty-Second street, going up what is known as Railroad alley, the usual and nearest route. On Railroad alley, which is a public street of Ashland, appellant has a double track, called the east-bound and westbound tracks. The former, lying next to the hill, is used by appellant’s trains running to Huntington, W. Va., and other points east, and the latter, lying next to the Ohio river, is used by its trains running to Cincinnati.
Appellant complams that the trial court improperly refused to peremptorily instruct the jury to find for it. We do. not understand, from the brief of its able counsel, that it is claimed the. peremptory instruction should have been given on the ground that appellee was a trespasser upon its track, for, when struck by the train, he and Picklesimer were on the crossing at Thirty-Second street, but because, it is insisted, he was guilty of contributory negligence'in being upon the crossing and east-bound track at the time of the collision. Upon the facts furnished by appellee’s testimony, the court could not, as a matter of law,
Under the circumstances, the mere fact that he was momentarily standing, on the east-bound track was not of itself such evidence of contributory negligence on the part of appellee as would authorize the court to take the case from the jury. Whether, in thus situating himself, appellee exercised ordinary care for his own safety, was a matter to be determined by the jury. In view of the noise made by the freight train, to which his attention was particularly - directed, because it was passing between him and the house to which he was going, and of the fact that the passenger train was an extra train, and, therefore, not expected, and the further fact that it was running, according to the testimony of three witnesses near by, at from 20 to 30 miles an hour without ringing its bell or giving other signal of its approach," it is not difficult to understand why the jury reached the conclusion that in the matter of receiving his-injuries appellee was not guilty of such negligence as should defeat a recovery.
“It would he unreasonable to require of persons passing daily on foot or in vehicles along a public street in a populous, busy city or town, to stop at a railroad crossing in order to listen or look up and down a track, sometimes visible hut a short distance, to ascertain whether a train' is approaching, when they can without doing so have comparative security against inconvenience and injury by a reduction of the speed of trains, and easily and certainly warned of its approach by the hell or whistle. ” L. & N. R. R. Co. v. Lucas, 98 S. W. 308, 30 Ky. Law Rep. 359; Ky.
The instructions of the circuit court gave to the jury the law applicable to the facts of this case, and were as follows:
“The court instructs the jury that it was the duty of the agents in charge of defendant’s passenger train to use ordinary care to prevent collision with and injury to persons traveling the street where it intersects with defendant’s railroad track by keeping a lookout in approaching said crossing, and in giving reasonably sufficient signals by ringing the engine hell to warn travelers of the approach of the train, and by running at such a rate of speed as was reasonably consistent with the safety of persons traveling the street. And if the jury believe from the evidence that on the occasion in controversy the defendant’s agents • in charge of its train failed in the performance of any or all of these duties, and by reason of such failure the collision occurred, then the jury should find for the plaintiff, unless they believe from the evidence the plaintiff failed to exercise ordinary care for his own safety.”
No. 3: “The court instructs the jury that if they believe from 'the evidence that, at the time and place of his injury, the plaintiff, Wardie Patrick, was not upon or traveling the Thirty-Second street crossing, but was walking upon defendant’s tracks east of said crossing, then the law is for defendant, and the jury will so find.-” ■
No. 4: “If the jury find for the plaintiff under instruction No. 1, they will allow him such reasonable sum in damages as they may believe from the evidence will fairly compensate him for any suffering, mental or physical, which he has suffered as the direct result of said injury, and for any suffering they may believe from the evidence it is reasonably certain he will experience in the future as the direct result of said injury, and for all permanent reduction, if any of his power to earn money in the future- as the direct result of said injury, not exceeding in the aggregate the sum of $2,000, the amount claimed in the petition. ’ ’’
No. 5: “ Ordinary care is that degree of care- which ordinarily prudent persons are expected to use under similar circumstances. Negligence is the failure to-use ordinary care.”
We do not think the instructions open to the objections made to them by appellant’s counsel. It was not error for instruction No. 1 to confine the signals of the approach of the train by which appellee was injured to the ringing of the bell; for, according to appellant’s evidence, no sounding of the engine whistle that could have been heard by appellee was done until the engine was within a few feet of, and in fact, upon him, which was too late to give notice of the coming of the train. Besides, nearly all of appellant’s servants in charge of the passenger train testified that the bell rang as the train approached, and for a long distance before it struck, appellee. We fail to see that appellant was prejudiced by the instruction. The second objection to instruction No.:l was removed by instruction 3, which in substance advised the jury that there could be no recovery unless appellee was upon the Thirty-Second street crossing when struck by the train. Instruction 2 could have been in no sense misleading or prejudicial, as the’ evidence showed that appellee- was struck by the train upon reaching the Thirty-Second street crossing and as he was in the act of turning to cross the west-bound railroad track.
We have found no error in the admission or exclusion of evidence; and as, on the whole record, no reason has been shown for disturbing the verdict, the judgment is affirmed.