139 Ky. 574 | Ky. Ct. App. | 1902
Lead Opinion
Opinion op the Court by
Affirming.
Appellants operate a railway and toll-highway bridge across the Ohio river connecting the cities of Louisville and New Albany. A board fence seven feet high separates the railway track from that part of the bridge used by footmen and wagons. On January 16th, 1898, appellee and a companion occupying her buggy paid the toll for passage across the bridge from Louisville. They met a heavy 'freight train, with a locomotive at each end. Appellee’s horse took fright at the noise of the train, and she claims after that fact and her peril had been discovered by those in charge-of the second locomotive, they took no steps to stop its noise, but continued it, the locomotive throwing out smoke and steam, as well as hot cinders which lit on the horse’s back, causing it to run away, demolishing the buggy and harness, and seriously injuring- appellee. In this suit for damages the jury awarded her a verdict of $800.
On the first point, if the evidence on behalf of plaintiff was such altogether as full credit being given to it by the jury, would have warranted a verdict for the plaintiff, the peremptory instruction for a non-suit should have been refused.
Appellee and her companion each testified that the horse became frightened at the first locomotive and showed plainly its nervousness, but was not beyond her control; the train was of about 22 cars; that before they came up with the second locomotive the fireman and engineer were both on the side of the engine next to- the driveway in use by plaintiff, and they saw her, and saw that her horse was frightened and trying to run, but that instead of stopping or attempting to reduce the noise of the locomotive, which was, as they testified, throwing out an unusual quantity of. steam, smoke, and sparks or cinders, and making a great deal of noise, these trainmen merely stood and laughed at her predicament; that the sparks or hot cinders from the locomotive,fell on her horse’s back and burned it, from all of which it ran away, causing her serious injury. A. trainman who was on top of the cars, and about 100 feet in front of the second locomotive testified for plaintiff that he saw the horse was frightened; that the locomotive was making considerable noise, which was not stopped till
If the jury believed this evidence, appellee was entitled to a verdict under the law governing her rights and appellants’ duties and liabilities in the premises. The peremptory instruction was properly refused.
The engineers and firemen in charge of the two locomotives testified that their respective engines were in good order, spark arresters being provided of approved pattern, which were in good condition; that the engines were not making more noise than customary and necessary in their operation. Those in charge of the second locomotive denied that they saw any symptoms of fright in the horse, or that they laughed at plaintiff’s situation, but that seeing the buggy coming, with the two women in it, they shut off steam before the horse came up, and that the horse
We conclude that the verdict of the jury was not contrary to the evidence.
The court instructed the jury as to appellant’s duty that in operating its train upon the bridge appellant was required to exercise the highest degree of care usually exercised by prudently managed corporations of the same character, to prevent injury to passengers on foot or in vehicles that may be using the bridge the same time that a train is passing; that a failure to exercise that degree of care in the management of the train was actionable negligence. The court further said:
“I will further say to you, that if you believe from the evidence that in the operation of this particular train which is said to have caused the injury complained of, no more noise was made than is usually incident to the operation of such trains, then the defendant cannot be said to be guilty of negligence in the operation of that' train. But if you shall believe from the evidence that the plaintiff’s horse became frightened, and those in charge of the train saw that it was frightened, then it became their duty to take such steps as was within power to prevent the accident which is claimed to have resulted from the fright of tire horse, and if they after seeing the fright of the horse, and the peril of the lady failed to take such steps as were at hand by which they could have, prevented the noise and the consequent Injury, if they could have so prevented it, then it was negligence upon the part of the defendant’s agents In not so doing, if they did fail to do it.”
It is complained by appellant that the court should not have exacted from the bridge company a higher
Another line of cases is relied on also by appellant to the effect that those using a railway-highway crossing are bound to use the same degree of care to protect themselves from injury as the railway company is required to use to- keep from injuring the traveler. (L. C. & L. R. R. Co. v. Groetz's Adm’r, 79 Ky., 449; A. T. & S. F. R. R. Co. v. McClurg, 59 Fed. Rep. 862; and L. & N. R. R. Co. v. Cummins, 23 Ky. Law Rep. 631, etc.) In all those cases the traveler
The instruction given by-the court really told the jury that the bridge company was required to use the highest of ordinary care — not the greatest possible care. Ordinary care has no grades known to the law. This instruction, when reduced to analysis was, that the bridge company was required to observe ordinary care. The emphatic form used by the court while improper does not seem to have misled the jury, or prejudiced appellant’s rights. As to appellee’s contributory negligence the court told the jury:
“Contributory negligence means the failure of a person to exercise the degree of care -usually exercised by ordinarily careful and prudent persons under the same or similar circumstances to protect themselves from injury, and by reason of which failure they help to cause or bring about the injury complained of.”
In other words, the jury were told that it was the bridge company’s duty to observe the best care usually observed by ordinarily prudent bridge operators under similar circumstances, to avoid the injury; and
It is further complained by appellant that the instructions made it the duty of appellant to look out for teams, and that a failure to see them, when it might have been done by the exercise of proper care, was equivalent to seeing them when fngntened and then failing to use due precaution to stop the noises causing the trouble, so far as was possible. This is said to be in conflict with L. & N. R. R. Co. v. Smith, supra.
We do not place such construction on the instructions given, but rather the contrary. We are of opinion, though, that a different rule might be applied in a case like the one in hand to one where the traveler is upon a parallel highway to the railway. The bridge company should maintain a reasonable lookout for the safety of its passengers on its bridge, from whatever cause connected with the company’s acts, or those of its servants.
The court in the instruction quoted properly recognized that it was the right of the defendant to make
It also follows that those operating the railroad trains over this bridge must know that people are using other parts of the bridge for the purpose of passing with their vehicles; that teams are liable under such conditions to take fright at even the usual, customary noises incident to the operation of trains. Therefore as such bridge passengers are passengers of the company who are operating the trains, and are entitled to more than a negative care, the trainmen should keep a lookout for the purpose of discovering whether teams have become so frightened as to become unmanageable and dangerous to their drivers and to others on the bridge. In such case it would be the duty of those in charge of the train, so far as they reasonably could, to shut off the exhaust of steam and not cause any more of noise than is necessary under the circumstances. Nothing unreasonable is by this required of those operating.the
We perceive no error in the proceedings and the judgment is affirmed with damages.
The whole court sitting.
Rehearing
delivered ti-ie following response
TO PETITION EOR RE-HEARINGS
In the unusually able petition for re-hearing filed for appellant the following propositions are presented and relied upon with much earnestness. It is asserted (1) that the authorities cited in the petition show conclusively that this court committed a grave error in holding that the relationship of common carrier and passenger existed between the appellants and the appellee, and that the appellants (receivers of the bridge company) owed to the appellee (a person driving over the bridge) that high degree of care which the law exacts of a common carrier towards its passengers. (2) That the instruction given by the lower court, requiring of the appellants the highest degree of care, was almose identically the same instruction which the Court of Appeals in Cummins v. L. & N. R. R. Co., 23 Ky. Law Rep., 681, held was reversible error, (3) That “it is altogether inconsistent for this court to say in its opinion, that the instruction given by the lower court was error, and still say that it did not mislead the jury/*
In response to the first proposition it must be noted that the court did not say that the same high degree
Under the second proposition it will be observed by a comparison 'of the instruction given, that in the case of Cummins v. L. & N. R. R. Co., supra, there was not only a difference.in the duty owing by the railroad company to the traveler upon the highway, but there is a marked and material difference in the wording of the instructions. In the Cummins case the jury were told that it was the duty of the company to exercise the highest degree of care to avoid injury to persons at the crossing. In the case at bar the instruction was that the company was required to use the highest degree of care usually exercised by prudently managed corporations of the same'character to prevent injury to passengers who may be using the bridge at the same time a train was passing. How the degree of care usually exercised by prudently managed corporations of the same character is necessarily ordinary care, whatever it may be. If similar corporations, prudently and properly managed, usually exercise an extraordinary degree of care, then an extraordinary degree of care would be the care ordinarily exercised by such corporations under such circumstances. Therefore it follows that the highest degree of care usually exercised means that care ordinarily exercised by such corporations in the conduct of similar business, and while, as said in the former opinion, the instruction may have been phrased more satisfactorily it was not probably misleading.
Furthermore we find that the court gave to appellant more favorable instructions on the question of contributory negligence than it was entitled to; in
It frequently happens that immaterial errors creep into records. The Legislature to prevent reversals for such, and to prevent reversals in just such a case as this one has provided by Section 134 of the Civil Code of Practice: “The Court must in every stage of an action disregard any error or defect in the ceedings which does not affect the substantial rights of the adverse party, and no judgment shall be io-. versed by reason of such error or defect.”
.Upon reconsideration we conclude ‘to adhere to the opinion and decision heretofore announced. Petition overruled.