138 Ky. 486 | Ky. Ct. App. | 1910
Opinion of the Court by
Comm issioneb — Reversing.
Appellant, Charles B. Boll, instituted this action against the appellee, Louisville Railway Company, to recover damages for personal injury. The jury found for appellee. From the judgment based upon this finding this appeal is prosecuted. Appellant asks a reversal because of errors in the instructions, and because the court refused to submit to the jury the question of the incompetency of appellee’s motorman.
The evidence for appellant is to the effect that, on the occasion of the accident, he had stopped at a cottage on Barret Avenue, in the city of Louisville, for the purpose of interviewing the owner thereof in regard to some business. At this point, and for several hundred feet, the grade is. very steep. He hitched his buggy on the side of the street. After going into 1he cottage, and finding the owner not there, he returned, unhitched his horse, fastened the hitch rein, and got into -his buggy. Before .getting into the buggy he looked up the street to the crown of the
'The evidence for appellee was to the effect that appellant was driving along the right-hand side of the track when he suddenly pulled across the track in front of the car, when.it was too late for the motorman to stop. In his deposition, taken before the trial, the motorman testified that he had come within 60 feet of the buggy before he saw it. The horse and buggy then wheeled across the track 30 feet ahead of the car. Upon the trial he testified that he saw the horse and buggy when 150 feet awaj; that the horse and buggy wheeled across in front of the car when the car was only 20 feet distant. The speed of the car at the time of the accident was only 4 or 5 miles an' hour. After striking the buggy, the car went its full length before it came to a stop. The conductor, who was in charge of the car, stated that he heard the gong sounded,, and upon looking up discovered the horse and buggy passing over the track about 35 feet ahead.
We conclude that the court did not err in refusing to submit to the jury the question of the motorman’s incompetency. It was shown that the motorman
The instructions given by the court are as follows:
“(1) It was the duty of the motorman in charge of the car which collided with the plaintiff’s buggy to keep his car under reasonable control, to run his car at a reasonable rate of speed, to keep a lookout ahead of him for persons who might be upon the track or so near the track as to be in danger of being-collided with by the car, and give notice of the approach of his car to such place as persons were upon the track or so near thereto as to be in danger of being struck by the car, and to exercise ordinary care to so run and operate his car that it would not be brought into collision with persons upon the track; and if you believe from the evidence in this case that the motorman in charge of the car failed in any one of the duties which I have just enumerated to you and negligently caused the car to collide with the plaintiff’s buggy, and the plaintiff was injured, the law of the case is for the plaintiff, and you should so find.
“ (3) I further instruct you, gentlemen, that it was the duty of the plaintiff, Charles B. Doll, to exercise ordinary care for his own safety in going upon the track, and although you may believe from the evidence that the motorman in charge of the car failed in his duties or some one of them, as submitted to you by the first instruction, yet if you further believe from, the evidence that the plaintiff, Doll, failed to exercise'ordinary care for his own safety, and such failure on his part so contributed to bring about his injury that but for such failure he would not have been injured, the law of the case is for the defendant, and you should so find.
“ (4) I further instruct you, gentlemen, that if you believe from the evidence in this case that the motorman in charge of the ear saw, or by the exercise of ordinary care could have seen, that the plaintiff’s buggy was upon the track, or was going upon the track in front of his car and was in danger of being struck by the car, and he saw, or by the exercise of ordinary care could have seen, it far enough back of where the buggy was upon the track, or was going upon the track, by the exercise of ordinary care, to have stopped the car or arrested its motion and thereby prevented the car from colliding with the plaintiff’s buggy and injuring him, then the law of the case is for the plaintiff, and you should so find.
“ (6) I instruct you, gentlemen of the jury, that if you believe from the evidence that the plaintiff’s hearing was so impaired as to prevent his hearing the car or hearing the ringing of the bell of a car which was approaching him, far enough off to enable him to receive such warning and get off the track, then I instruct you that it was his duty to exercise, as far as a reasonably prudent man would exercise under the same or similar circumstances, his other faculties or senses in protecting himself from collision with the car.
“ (7) ‘Ordinary care,’ gentlemen, is that degree of care which ordinarily careful and prudent persons usually exercise under like or similar circumstances, and ‘negligence’ is the failure to exercise ordinary care.
“(8) If you find for the plaintiff, you will award to him such sum in damages as you believe from the
The appellant offered the following instructions:
“A. If you believe from the evidence that the plaintiff failed to exercise ordinary care for his own safety, and that by reason of such failure he contributed to the injury but for which it could not have happened, then jmu shall find for the defendant, unless ymu further believe that, after the plaintiff’s said failure to exercise care on his part, the motorman perceived his danger, or could by ordinary care have perceived the same, and could have prevented the same by ordinary care, and failed so to do, whereby
“B. The plaintiff’s negligence, if any there was, the injury happened.
will not prevent his recovering a verdict in this ease if after such negligence the motorman in charge of defendant’s car discovered the same, or by the exercise of ordinary care could have discovered the same, in time to save him by the exercise of ordinary care, and by reason of failure so to do, the injury to plaintiff occurred. ’ ’
It is insisted that the court erre'd in failing to give one or the other of these instructions, or in not embodying the idea therein expressed in either instruction 3 or 4 as given. It is the contention of appellee however, that the instructions should be read and considered as a whole, and that when so considered the qualification insisted upon by appellant was practically submitted to the jur3L It may be that a
Judgment reversed, and cause remanded for a new trial consistent with this opinion.