Illinois Central R. R. v. Mizell, 100 Ky. 235

Illinois Central R. R. v. Mizell

100 Ky. 235 | Ky. Ct. App. | 1896

JUDGE Du RELLE

delivered the opinion oe the court.

The appellee was riding on horseback along a public highway which crossed the railroad of appellant. At the intersection the railroad, and the highway as well, passed through cuts which prevented persons on the highway from seeing approaching trains until they were within a few feet of the rails.

According to her statement she was riding very slowly, and was listening for the signal by bell or whistle of the approach of a train. She heard no signal and did not see the train until she was on the track at the crossing, and the train, which was a freight train and going at a rapid rate, was, according to her statements, within fifteen or twenty feet from her when she saw it. Her horse became frightened at the train, ran with her some hundred yards or more, and in turning a curve in the road threw her off and dragged her a short distance. She was badly bruised by the fall, and her shoulder was *238injured to such an extent that at the time of the trial it was an inch and a half lower than the other shoulder. By reason of the injury and her subsequent confinement to her room she was unable to secure a position as a teacher, for which she was at the time an applicant.

For the injuries received and the suffering and loss of time caused thereby, she brought suit against the appellant and the jury awarded her |2,000. The basis of her complaint is that the alleged failure to give the signal required by law for the crossing was the cause of her attempting to make the crossing and of her horse being frightened and the consequent injuries.

It is -not pleaded that the failure to give the signal was in violation of law, and we do not think it was necessary to so plead. The statute is a general one, and is not required to be specially pleaded.

The principal ground relied on by appellant is that the alleged negligence in failure to blow the whistle was not the proximate causs of the injury; but if by reason of that failure the appellee went upon the track and her horse there frightened by the approaching train, the jury, if they believed appellee’s witnesses, had evidence from which they were entitled to find that the negligence was the proximate cause of the injury, and that the damage followed as a continuous and natural consequence from the negligent act, and was a result which might have been foreseen and expected as the result of the conduct complained of, for it was to be expected that passengers op horseback might be traveling along the highway. 3 Parsons’ Contracts, 179.

*239The question of contributory negligence was properly submitted to the jury by the instructions. In our judgment the fact that appellee did not come to a full stop to listen for the train, but brought her horse to a slow walk in order to listen, was not, per se, contributory negligence. There was evidence of other witnesses who corroborated her statement that the signal was not given, and the question was properly left to the jury. Instruction B, the refusal of which is complained of by appellant does not appear in the record. The instructions given appear to correctly state the law. We can not say under the evidence in this record that the verdict is excessive.

Judgment affirmed.