134 Ky. 716 | Ky. Ct. App. | 1909
Opinion op the court by
— Reversing
“ (1) The court instructs the jury that, if they believe from the evidence that the injuries to plaintiff complained of in the petition resulted from or were caused by the- negligence of defendant, its agents, servants, or employes operating, managing, and controlling the engine and tender of defendant which struck plaintiff, if he-was struck, then they should find for plaintiff such damage as they ¡believe from the evidence will fairly and reasonably compensate him for any physical and mental pain and anguish he has sustained or suffered, if -any, or that the jury from the -evidence may believe he is reasonably certain to hereafter suffer ,and for any permanent impairment of his power to earn money, not exceeding $15,000, the amount claimed in the petition. And, if they shall believe from the evidence that plaintiff’s injuries and suffering, if any, were the result of gross negligence upon the part of defendant or its said employes, 'then, in addition to- compensatory damages, they may find for him such sum in punitive damages as from all the evidence in the case they may deem proper, not in ,all to exceed the sum of $15,-000 sued for.
“(2) The court instructs the jury that where a railroad track runs through a populous community along or across streets, where from the nature of things persons may reasonably be expected at any time, it is the duty of those in charge of trains or engines to signal by blowing the whistle or ringing the belli, ,and to so operate them at a speed which has the train on engine under control, and keep such a lookout as will enable the operators to give timely warn
“(3) Gross negligence, as uised in the instruction, means the absence of slight care.
“(4) By ‘ordinary care,’ as used in these instructions, is meant such care as is usually observed by ordinarily careful persons under the same or similar circumstances as those proven in this case.
“(5) The jury are instructed that plaintiff cannot recover in this case if the injuries to plaintiff set out and complained of in the petition could not have occurred but for plaintiff’s own negligence; and, if the jury believe from the evidence that the injuries complained of by plaintiff were 'Caused by and resulted from his own negligence, then they should find for die defendants, unless defendant’s agents, servants, and employes operating, managing, and controlling the engine and tender which struck plaintiff, if he wats struck, could by ordinary care have known of the peril in which plaintiff’s negligence had placed him, and thereafter failed to observe reasonable care to avoid the injuries which ensued to plaintiff, if he was injured.
“ (6) The court instructs the jury that it was plaintiff’s duty in crossing defendant’s track to use ordinary care, and to look out to discover an approaching train or engine; and, if he failed to do so, and was injured in consequence thereof, they should find for defendant, unless defendant’s agents operating the train or engine which struck plaintiff, if he was ’struck, could by ordinary care have known of the peril in which plaintiff’s negligence had placed him, if he was negligent, and thereafter failed to observe reas
It is earnestly insisted that the- court should have --instructed the-jury -peremptorily- to find for the defendant 'because Miller did not look up the track before walking upon it. The place where he was .struck was in constant use by the public. It was within the . 'station .platform and a part of it. At such places it is- incumbent upon the railway company to- anticipate ■ the presence of- persons, and to exercise ordinary chare for their safety. The rule stop, look,, and listen • has not been -adopted in this -state. On the contrary, ¡té have uniformly held that at places like this it. is
•.= A¡question for the jury whether the traveler exercised 6-ordinary care where, the train is run at a dangerous 7'..rate of speed, or timely warning of its approach is f-aaot given, or a proper lookout is not maintained, e Crowley v. L. & N. R. Co., 55 S. W. 434, 21 Ky Law Rep. 1436; L. & N. R. R. Co. v. Lowe, 118 Ky. 260, 80 S. W. 768, 25 Ky. Law Rep. 2317, 65 L. R. A. 122; L. & N. R. R. Co. v. Lucas, 120 Ky. 359, 86 S. W. 682, 27 Ky. Law Rep. 769; Davis v. Louisville, etc., R. Co., 97 S. W. 1122, 30 Ky. Law Rep. 172; Perkins v. C. & O. Ry. Co., 123 Ky. 229, 94 S. W. 636, 29 Ky. Law Rep. 660; L. & N. R. R. Co. v. McNary’s Adm’r, 128 Ky. 408, 108 S. W. 898, 32 Ky. Law Rep, 1266, 17 L. R. A. (N. S.) 224.
The case before us- cannot be -distinguished from those cited, and under the rule there laid down the court properly refused to instruct the jury peremptorily to find for the defendant.
It is incumbent upon the person crossing the railroad track to exercise ordinary care for his -own
Instruction 2 requires the railroad company at such places to so operate its trains and engines as to stop them in case of necessity before injury has been inflicted. This goes too far. The company is only required to exercise ordinary care at such places: If the plaintiff came on the track so' close to the engine that his injury could not have been avoided by ordinary care, the defendant is not liable; and to make it liable in all cases where it fails to keep such lookout or to ran at such speed as to stop in case of necessity before injury has been inflicted would he- practically to make it an insurer at such places. In lien of instruction No; 2, the court should have told the jury that, where ¡a railroad track runs through a populous community .along or across streets or other public places where the presence of persons on the track may be reasonably anticipated, it is the duty of those in charge of the trains or engines' to keep a lookout, to give timely warning by bell or whistle of their approach, ¡and to operate them at such speed and under such control as ordinary -care for the safety of such persons requires. Instruction No. 3 should be omitted.
In lieu of 'instructions Nos. 5 and 6, the court on another trial will instruct the jury that it was the duty 'of Miller on approaching the track to' use such care as may be usually expected of an ordinarily prudent person to- learn of the approach of the engine, and keep out of its way, and that, if he failed to exercise such care and but for this would not 'have been injured, the law is for the defendant and the jury should so find, even though they may believe from the evidence that the defendant’s employes were negligent as set out in instruticon No. 1.
Judgment reversed, and cause remanded for a new trial.