119 Ky. 862 | Ky. Ct. App. | 1905
Opinion of tiie court by
Reversing.
Appellant, Gus Greene, Avas driving’ in his wagon eastward at the intersection of Twenty-third and Portland avenues in the city of Louisville, when a street car propelled by electricity came up behind him, and ran into his- Avagon, throwing him to the ground, turning his wagon OArer, and injuring him, his horse, and his wagon. He was driving at the time on the track of the street railway laid in the street because that Avas the smoothest part of the highway; traveling at
The court gave the jury these instructions: “(1) The court instructs the jury that if the plaintiff was injured in the manner complained of in the petition, and that the accident and consequent injury, if any there was, was caused by the failure of the defendant or its employes to exercise reasonable and ordinary care in the operation of its car, then the law is for the plaintiff, and the jury should so find. However, the court further instructs the jury that the plaintiff was bound to exercise that degree of care and caution for his own safety that á person of ordinary prudence would exercise under the same and similar circumstances, and if the jury believes that the plaintiff did not exercise such a degree of care and caution, and the accident was occasioned
It is incumbent upon all travelers on the highway to exercise ordinary care for the safety of others using the high
If appellant was obstructing with his wagon the railway-track, he might be punished for this under the city ordinance ; but he was lawfully upon the highway, and had the right to use one part of it no less than another, although occupied by the track of the street railway. If, while on the street car track, he was struck by the car without negligence on the ’part of those in charge of the car when his presence on the track could not be discovered by them in the exercise of ordinary care in time to avert the injury, he can not recover. But he was not a trespasser on the track, and he had the right to anticipate that a proper lookout would be
Instruction 2 was misleading, and should not have been given. In lieu of instruction 2 given by the court and in lieu of instruction 2 asked by the plaintiff the court should have told the jury that the plaintiff was lawfully upon the street, and had the right to use any part of it; that the defendant was entitled t,o the use of its tracks for the free passage of its cars; that it was the duty of those in charge
Instruction 3 given by the court should be omitted. In so far as it was the converse of the last clause of instruction 1, it is unnecessary. There avus evidence tending to show Avant of due precaution in other respects on the part of the operators of the car, and the instruction wa-s an improper limitation on the first clause of instruction 1.
Judgment reversed, and cause remanded for further proceedings consistent herewith.