109 Ky. 76 | Ky. Ct. App. | 1900
Opinion op the court by
Reversing.
It is alleged in the petition that the plaintiff, now appellant. was, about the 31st December, 1896, by the gross negligence of the defendant, .its agents and servants, thrown from his buggy, his leg broken, mashed, and bruised, and otherwise injured, and was caused great suffering of mind and body, loss of time, and was permanently injured, and sustained damages in the sum of $15,000; that at said time his buggy came in collision with the rail of one of the defendant’s tracks on Baxter avenue, or Bards-town road, in Louisville and said rail was negligently permitted to stand up high aboAre the level of the street, and was in a dangerous and defective condition, and was a nuisance, and had been maintained in said condition for a long time prior to saiid accident, and by reason of said condition he received the injuries aforesaid.
The first paragraph of the answer is a traverse of the allegations of the petition as to the injury complained of, as well as a traverse of all negligence on the part of defendant. The second paragraph pleads contributory negligence on the part of plaintiff, which plea was denied by reply.
At the conclusion of plaintiff’s evidence defendant moved
The grounds relied on for a new trial 'are as .follows: i!Fir.st, that the verdict is contrary to the evidence, and is not sustained by the evidence; second, that the verdict is contrary to the law; third, that the court erred in refusing to give instructions numbered 1, 2, and 3 offered by plaintiff, and in refusing to give either of said instructions, to which ruling of the court the plaintiff excepted at the time; fourth, that the court erred in giving instructions Nos. 1, 2 and 3 of its own motion, to the giving of which instructions and each of same plaintiffs objected and excepted at the time; fifth, that the court erred in admitting incompetent and 'illegal testimony, as shown by the stenographer’s report of same, to the introduction of which testimony the plaintiff objected, and still excepts.”
The plaintiff moved the court to give the following instructions to the jury:
‘‘(1) The court instructs the jury that the law made it the duty of the defendant to so lay their tracks and maintain them in such condition and repair as not to interfere with the safety and convenience of the public travel on the streets occupied by their rails, and if the jury shall believe from the evidence that the defendant negligently failed to exercis" ordinary care in the laying of the tracks, or in maintaining them in such condition and repair as to interfere with the safety or convenience of the public travel on the street, and that by reason of the negligent failure of
“(2) The court instructs the jury that by the term ‘negligence,’ as used in the instruction No. 1, is meant the failure by defendant to exercise that degree of care that ordinarily prudent persons observe under the same or similar circumstances.
“(3) The court instructs the jury that by the term ‘contributory negligence’ is meant the failure on the part of the plaintiff to observe that degree of care that ordinarily prudent persons exercise under the same or similar circumstances for their own safety.
“(4) If the jury find for the plaintiff, they will assess his damages in such sum as will fully compensate him for any injuries he may have sustained by reason of the accident, and in so doing the jury may take into consideration his loss of time any physical pain and mental suffering he many have endured, and any impairment of his ability to earn money, the whole not to exceed the sum of $15,000, the amount claimed in the petition.”
The court refused to givé Nos. 1, 2, and 3, but gave No. 4.
Defendant then m'oved the court to give instructions Nos. 1, 2, 3, 4, 5, 6, and 7, which are as follows:
“(1) If the jury believe from the evidence that the plaintiff’s horse and buggy had passed over defendant’s tracks
“(2) The court instructs the jury that the plaintiff bad no right to leave "the turnpike proper with his buggy, and if he did so, and was injured in any effort to get back upon the turnpike, then the law is for the defendant, and the jury should so find.
“(3) If the jury believe from the evidence that the defendant’s track was originally properly constructed, so as not to be dangerous to public travel, and further believe- from the evidence that the track where the accident • happened became dangerous, not by reason of any defect in said track or any change in the grade of said track, but by the reason of the failure of the turnpike company or the city of Louisville to maintain the roadbed of the turnpike or of the street, the law is for the defendant, and the jury .should so find.
“(4) The court instructs the jury that it is not the duty of the defendant to keep the street or turnpike in repair
“(5) If the jury believe from the evidence that the plaintiff’s horse became frightened and ran away with plaintiff, and by reason of said fright became uncontrollable by plaintiff, and they further believe that the injuries received by plaintiff were due to the fact that his horse ran away with him, then the law is for the defendant, and the jury should so find.
“(61 The court instructs the jury that it was not the duty of the defendant to so construct or maintain its tracks as to make it safe for persons to dtive across them at an extraordinary rate of speed, or to persons who may be driving horses which are frightened and running away.
“(7) If the jury believe from the evidence that the tracks at the time plaintiff was injured were not in such condition as to be dangerous to the ordinary traveler upon the streets, then the law is for the defendant.”
The court sustained plaintiff’s objection to Nos. 2, 5, 6. and 7, and overruled the objections to Nos. T and 4. The court, then, upon its own motion, gave instructions 2, 3, and 5; also instructions 1 and 4, offered by defendant. The instructions so given by the court are as follows:
“(1) The court instructs the jury that it is not the duty of the defendant to keep t'he street or turnpike in repair beween defendant’s tracks or next to defendant’s
“(2) If the jury believe from the evidence that defendant’s track was originally constructed so as not to be dangerous to public travel, and shall further believe from the evidence that the said track where the accident happened became dangerous, not by reason of any defect in the track or any change in the grade of said track, but by reason of the failure of the turnpike company or the city of Louisville to maintain the roadbed of the turnpike or of the street in a safe conditioji, and that such failure on the part of the city or turnpike caused the accident and injury to the plaintiff, the law is for the defendant, and the jury shall so find.
“(3) If the jury believe from the evidence that the plaintiff’s horse and buggy had passed over the defendant’s track, and had left the turnpike proper, and that the plaintiff, in an effort to bring his horse back upon the pike, pulled the said horse against the extreme western rail of defendant’s track, which is situated upon the western edge of the turnpike, and thereby broke the wheels of said buggy, 'and threw plaintiff out and injured him, then the law is for the defendant, and the jury shall so find, unless the jury shall believe from the evidence that the extreme western rail of defendant’s track as originally constructed was dangerous and unsafe to the traveling public, and that the accident was due to, and caused by, such defective or dangerous condition in the original construction of said
“(5) The court instructs the jury that, if they find for the defendant, they will by their verdict simply say so, and no more.”
It is. the contention of appellee that the peremptory instruction should have been given; hence if is argued that, if any errors occurred, they did not prejudice plaintiff’s substantial rights; therefore the judgment should be affirmed. It, however, seems to us that there was sufficient evidence introduced to authorize a submission of the cause to the jury, unless the law is as given in instruction No 1, which seems to require no duty of the railway company except to construct its 'track at first so as not to be dangerous io public travel, and to maintain it as at first constructed.
The principal question presented for decision is what duty, if any, the defendant owes to those using the streets. It seems to be the contention of appellee that if the tracks are at first constructed so as not to materially obstruct and .endanger the safety of persons using the streets, and that the rails remain in the position first placed, the defendant is not liable for any damages to persons or property by reason of the rails or tracks becoming an obstruction by reason of the wearing away of the street from the rails or natural sinking or from any cause whatever. The instructions of the trial court seem to sustain the contention of appellee. If the contention "be sound, the defendant would not be liable for damage caused by its rails being twelve inches or more above the street, if such a result was not caused by a change of the rails or track from the position the same was at first placed. It would thus seem that, according to the instructions given, appellee could continue to use its track, although the same was a constant
In 23 Am. & Eng. Enc. Law, p. 983, it is said: “Independently of charter provisions and of subsequent statutes and ordinances, the street railway company is bound so to construct and maintain its road that the free use of the whole-street by the public shall not be materially impaired; and
In Pierce, R. R. p. 248, it is said:. “A railroad company which is authorized to cross highways is under a legal duty to construct its road across them in a reasonable manner, with reference to the double use of the crossing for its own purposes and for those of ordinary traveling. It is bound to keep the crossing as safe and convenient for public travel as is practicable, and is liable to individuals using the highway for injuries caused by defects and obstructions created by it which could have been avoided with reasonable precautions. The same obligation rests upon a company when, under authority of law, it lays a track upon and along the highway.”
In Booth, St. Ry. Law, section 243, it is said: “In the absence of such a duty imposed by statute or ordinance, a company can not be required to construct a new pavement on any part of the streets or highways occupied by its railway, but with reference to repairs the rule seems to be different. The character and extent of the use to which that portion of the street is subjected render frequent repairs necessary: hence it has been held that, where the defective condition of the street is caused by the failure of a company to keep the streets traversed by its tracks in good repair, it must answer for the consequences.”
In 1 Wood, R. R., p. 757, it is said: “Hence, where a railroad company has been permitted to lay its track along or across a highway, it is bound to the use of every reasonable precaution to prevent injury to those passing along the highway, or crossing its track that is laid along or across the highway; and if it fails to exercise a proper degree of care; not only such as is provided by statute, but also such as is rendered necessary by the character of the
In Gillette v. Railroad Corp., 8 Allen, 560, it is said: “A railroad company which so c'onstruets its track at a crossing of a highway as to render a highway dangerous or inconvenient to travelers thereon is liable for any injury sustained by a traveler on the highway in consequence of the defect, although he might also have a remedy against the town, which was bound to keep the highway in repair.”
The question under consideration was so thoroughly discussed and considered in Memphis, P. P. & B. Ry. Co. v. State, 87 Tenn., 746, (11 S. W., 946), that we copy the entire opinion: "The defendant railway company and William Katzenberger were indicted for creating and maintaining a nuisance in McLemore avenue, Shelby county, and it is charged that such nuisance was consequent upon the unlawful location and improper maintenance of a railway on said avenue. William Katzenberger was receiver of the defendant company, and the condition complained of in the indictment existed at the time of his appointment, and continued during his management, up to the time of indictment. It appears from the evidence that the part of the avenue occupied by the track of the defendant c'om-pany was not, at all points, in such condition that the same could be crossed by travelers on horseback or in vehicles, or be traveled over longitudinally, with safety. By an agreed state of facte, it appeared that the ‘railroad tracks,, its ties, and rails were above the surface of McLemore avenue, a public road at the time laid in the indictment, and obstructed public travel on that part of said highway occu
The same question was considered at length in Railway Co. v. De Lesdernier (in the Supreme Court of Texas) (19 S. W., 366). We copy the entire opinion, which is as follows: “This suit was brought by the appellee, Mrs. Be Lesdernier, against the appellant, the Houston City Street-Railway Company, for damages for personal injury
In Cline v. Railroad Co., 43 La. Ann., 332, (9 South., 124), it is said: “There can be no doubt that a city is under the obligation of keeping its streets, sidewalks, etc., in good order or repair, so, at least, as to prevent serious accident or injury to persons using the same or to their property; and that, where such happens by the heedlessness or fault of the corporation, having previous knowledge of the bad condition of the street, sidewalk, or particular dangerous spot, and without any contributory act, whether by commission or omission, of the party affected, the corporation can be held to repair the damage occasioned. It is also well settled in law and jurisprudence that, although a municipal corporation, by yirtue of the right with which it is vested of control over its streets, can legitimately grant to a railroad company the privilege to build its track and run its cars on the same, imposing upon it the burden of keeping them, from curb to curb or rail to rail, in good order and condition, so as to prevent injury, as it is itself bound to do, the concession of the grant, and the imposition and acceptance of the burden, do not relieve the corporation from liability should the company fail to comply with its obligations, and by its negligence and default inflict injury to one using due care and precaution, and not guilty of contributory neglect. It is also well recognized that a party injured has a double action against both the city and the railroad company, regardless of the contract between them, holding each as primarily responsible, and that when the city is mulcted it has the right to recover against the railroad company in the same action, if both are
It seems clear, upon both reason and authority, that it was the duty of appellee to see that the street or road in question was so nearly upon a level with the rails of its road as to reasonably prevent injury to the person or property of any person traveling or rightfully being upon said street or road, and, if it did fail so to do, it is liable in damages for such failure, without regard to whether any other person or corporation was liable to respond in damages for such injury. It results from the foregoing that instructions Nos. 1, 2, and 3, given by the trial court, are erroneous. Instruction 1, asked by plaintiff, is substantially correct. For the reasons indicated, the judgment is reversed, and cause remanded, with directions to award the appellant a new trial, and for proceedings consisten!' with this opinion.
Petition for rehearing and modification of opinion filed by appellee and overruled.