173 Ky. 469 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
Alleging that she received a serious injury to her person due to the back ringing of a signal bell maintained by appellant at a grade crossing, the appellee, Mrs. Kitty Comley instituted this action in the Franklin Circuit Court to recover damages. The injury of which she complains happened in May, 1913, at a point on the Glenn’s Creek pike where the defendant railroad company’s track crosses the same, at grade, about one mile east of the city of Frankfort. At this point, an admittedly dangerous crossing, the railroad company had theretofore erected and was maintaining an electric signal bell, which was intended to and did on the approach of trains from either side of the crossing, ring so as to warn travelers on the highway of the coming train. The bell is about 9 or 10 inches in diameter, and can be heard about 600 yards. The ringing would begin when a train approaching the crossing from either side, reached a point about two thousand (2,000) feet distant therefrom.
On either side of the crossing the track curves, and passes through a cut, which is such depth as to obstruct the view and prevent a traveler on the pike from seeing the oncoming train, as well as obstruct the view of the engine-men in charge of the trains. To warn the traveling public and thus avoid injury, the railroad company installed the electric signal bell, complained of in the petition.
The plaintiff, Mrs. Comley, and two neighbors were driving on the pike in an open top buggy, towards Frankfort. The vehicle was drawn by a single horse which Mrs. Comley had often driven on the same road and which she alleges was reasonably safe, gentle and a well broken animal. As they approached the crossing in question, the electric signal bell was ringing indicating the approach of a train to the said crossing, and in fact, said train was making such noise as to warn her that it was coming. To avoid injury she caused the
At this time she was a woman about 60 years of age, but in good health and of reasonable strength. From this injury she had not, at the time of the trial in the lower court, in September, 1915, • fully recovered, but was obliged to go about on crutches. The question is: Can the plaintiff recover for an injury occasioned her by unnecessary back ringing of a defective signal bell at a railroad crossing, frightening her horse and causing her to be thrown from the buggy to the ground? This question appears to be res integra in this jurisdiction.
The defendant company, prosecuting this appeal to reverse the judgment, relies upon the following five grounds:
First. The plaintiff’s petition does not support the verdict and judgment.
Second. It was defendant’s legal duty to have the electric bell at the crossing, and it is not, therefore, liable for the injury.
Third. There is no evidence that the defendant failed to exercise ordinary care in the construction and maintenance of the bell, therefore, the court should have told the jury, as a matter of law that plaintiff was not entitled to recover.
Fourth. The damages are excessive.
Fifth. The court gave the jury erroneous instructions on plaintiff’s motion.
These will be considered in the order named.
Continuing, plaintiff in substance alleges that the horse was of ordinary gentleness; that the bell suddenly and unnecessarily, when no train was approaching, began to ring loudly and make frightening noises, and did frighten her horse, and cause it to suddenly turn the buggy and throw the plaintiff to the ground, and cripple her, from which she has and will suffer great pain. The defendant company is charged with negli-' gence in the installation, maintenance and control of the signal bell; with having at the said crossing a defective signal bell that unnecessarily back rung, giving off loud noises, at an unexpected moment, and when to do so was reasonably calculated to frighten a horse of ordinary gentleness, at a time when the plaintiff was driving along the highway, as she had a right to do, which noise caused her horse to suddenly turn the buggy, with the resulting injury. When the train passed the plaintiff had the right to presume that the way was clear and to proceed on her way. The bell had ceased to ring. The crossing was clear and apparently safe. She was guilty of no wrong, or violation of duty in attempting to proceed. She could not forsee the back ringing of the bell or know of the defective condition of the device. Undoubtedly the allegations of the petition are sufficient to support the judgment.
It was the right of the defendant company-to have and maintain the signal bell at the crossing, but it was not required to do so. It might have placed there a flagman or gate to warn the public of approaching trains, but instead it chose to rely upon the signal bell. If the crossing was extra hazardous, as appears here to be the case, it was incumbent upon the defendant com-
There is some contrariety of evidence as to what care the defendant company employed to have the signal bell in condition to perform its functions, and defendant company asserts that there is no evidence for the plaintiff that the bell was not properly installed or maintained. .Thé wrong complained of is the back ringing of the bell. The bell did not back ring except when out of order. Defendant says, however, that it cannot be held liable because by the exercise of ordinary care, it did not and could not have discovered the defect in the bell in time to have saved the accident. Evidence was introduced on this point and was passed upon by the wry-
It must be conceded, however, that this bell is to the public a strange device, but slightly'understood in its mechanical construction,- and exclusively under the management and control of the company. In such cases, it has been repeatedly held that where the accident, injury and the circumstances under which they occur are shown by the plaintiff, and whether the injury resulted from negligence, is peculiarly within the knowledge of the defendant company, the burden shifts upon it to establish its freedom from fault. This doctrine has often been applied by the courts, not only in this state, but generally throughout the several states. This signal bell rang at an inopportune and unnecessary time, through some fault in the bell or its mechanism, and its ringing was the proximate cause of the injury. The bell was out of order; of this there is no doubt. It unnecessarily back rung; this resulted from a defect in the bell or its attachments; it was not intended so to do, and did not, in the usual and ordinary course, under proper care, management and inspection. Plaintiff was
Defendant, however, insists that tbe plaintiff bad tbe burden of proof and did not sustain it by evidence and did not show negligence on tbe part of tbe company, and negligence cannot be presumed. Ordinarily negligence cannot be presumed, but, as above stated, in cases of this character, when tbe accident, injury and surrounding circumstances are shown, it rests with tbe defendant to make tbe explanation, if it so desires, and to show it exercised due care. Res ipsá loquitur: tbe thing speaks for itself.
Tbe bell was wholly and completely under tbe control and management of tbe defendant company, and whether tbe bell and its attachments were or not properly inspected, and kept in order, was peculiarly within the knowledge of tbe defendant company, and its serr vants, and not in plaintiff, and when plaintiff produced evidence of tbe accident, injury and surrounding circumstances, tbe burden was cast upon the- defendant company to show it is not guilty" of tbe negligence charged.
Proof of an injury occurring as tbe proximate result of an act of tbe defendant, which could not usually, if done with due care, have injured anyone, is enough to make out a presumption of negligence. When a thing which causes an injury is shown to be under tbe management of tbe defendant and tbe accident is such as in tbe ordinary' course of things does not happen, if those who have tbe management use proper care, it affords reasonable evidence in tbe absence of explanation by tbe defendant, that tbe accident arose from a want of care. Sherman & Redfield on Negligence, sec. 59; Paducah Traction Co. v. Baker, 130 Ky. 360; Shinn Glove Co. v. Sanders, 147 Ky. 349; Louisville Lighting Co. v. Owens, 105 S. W. 435; Louisville & Nashville R. R. Co. v. Mink, 182 S. W. 188; Griffin v. Manice, 52 L. R. A. 922, 166 N. Y. 188.
Tbe defendant company bad tbe right to show, and did in fact undertake to show by evidence, that tbe
The plaintiff, Mrs. Comley, suffered a very severe injury. At her age and time of life a broken hip is indeed a calamity. According to the evidence had on the trial she is compelled to walk on crutches. In view of these facts we do not think the verdict of $2,500.00 is excessive, or that it could be said that the verdict appears to have been rendered under the influence of passion or prejudice.
The instructions given by the lower court fairly present the law of the case, and we perceive no prejudicial error to the defendant therein. The court gave all instructions offered by defendant’s counsel and that fully presented its side of the case.
Judgment affirmed.