154 Ky. 282 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
William H. Hardin was a conductor on one of the cars of the Louisville & Interurban Railroad Company be
According to the evidence for the plaintiff as the cars approached the station at Pewee Valley, it was customary for the conductors to change the trolley from one wire to another for the purpose of enabling the east, bound car to pass the west bound car at that station;.and it was customary for the conductors in doing this while the cars were approaching the station to go around the bumper at the rear end of the car and stand on the bumper and adjust the trolley. The bumper of the car was so constructed that the conductor could step from the platform on a portion of it, and thence using the handholds proceed to that portion of the bumper immediately underneath the rear windows, and while standing upon this part of the bumper, which was from ten to twelve inches wide adjust the trolley while holding to the handholds. The pole in question stood thirty-eight inches from the nearest rail of the track. The car extended over the rail nineteen inches. This would leave only about nineteen inches between the pole and the side of the car as it passed. The accident occurred about six thirty p. m. on August 18, 1911. As the car approached Pewee Valley there were a number of people standing on the rear platform. Clarence Netherton testified that he saw Hardin go inside and get his gloves, and put them on. These gloves were used when they were going to change the trolley; that he then came out on the back platform, and went around to the right, and this was the last he saw of him. Norman Blackley testified that he was sitting on the steps of the car on the right hand side; that the rear platform was filled with passengers; that while he was sitting on the steps and as the car was approaching Pewee Valley, Hardin touched him on the shoulder 'indicating that he wished him to arise; that he arose and moved out of the way, and he then saw Hardin step down
It is insisted for the appellant that this evidence does not show that Hardin was struck and killed by the pole and that on this evidence it is equally probable that he fell from the car and was killed in this way without striking the pole. But it will be observed that he went in the car to- get his gloves which were commonly used by the conductors while adjusting the trolley; that he came out of the car and had Blackley to get up from the steps on the south side of the car; that he was next seen with his hand upon the handhold nearest the platform at the south side of the car, and that none of the witnesses saw him after this; that next came a bump and a violent shaking of the ear, and that just after this Hardin’s body suddenly flashed out behind the car, and when he was reached he had received a heavy blow at the back of the head which broke his neck or fractured the skull; and there was practically no other injury upon him except some cratches on his „face received when he fell on his face. It is evident he passed out of view of the witnesses because he passed around the corner of the car and just after this came the thud or bump. If he was standing on the bumper holding to the handhold with one hand and
It is true that on behalf of the defendant a number of witnesses were introduced who testified that Hardin’s body was found from twenty to forty feet east of the pole. But we do not regard this fact as entitled to much weight for the reason that being a stout young man, having his hand gripped tightly upon the handhold when the car was running rapidly, he wrould not unreasonably be carried some feet beyond the pole before his grip upon the handhold relaxed. We, therefore, conclude that not only there was some evidence that Hardin was struck and killed by the pole but that the weight of the evidence sustains the verdict of the jury.
It is complained that in the first instruction, the court did not say anything about contributory negligence; but while this is true, the court by another instruction, told the jury that although they might believe from the evidence that the defendant was guilty of negligence as set out in instruction 1, yet if they further believed from the evidence that the deceased failed to use ordinary care for his own safety, and but for this would not have been hurt, they should find for the defendant. The instructions of the court are to be read together, and when the court expressly referred in this instruction to No. 1, the jury could not have failed to understand the meaning of the two instructions.
Lastly, the appellant complains that the following instruction asked by it was refused:
“If the jury believe from the evidence that the deceased knew of the proximity of said pole or if it was patent to persons of his experience and understanding, they should find for the defendant.”
If this instruction had been given it would have been under the evidence misleading. It was not incumbent on the deceased to anticipate that a pole had been placed so near the track as to endanger him in the proper and usual discharge of his duties, and he was not required to be on
Judgment affirmed.