164 Ky. 489 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing.
The main street of the town of Corbin is Center Street, which runs from west to east, and is crossed by the Louisville & Nashville Railroad, which runs north and south. On the night of December 18th, 1912, which was a cold night with snow on the ground, the appellee, Mrs. Isabella D. Cooper, who resided on Poplar street, on the west side of the Louisville & Nashville Railroad, went from her home to the postoffice in Corbin, which is on the east side of the railroad, and on Center street. The postoffice is less than a block from the railroad crossing over Center street. The appellee was a stout,
The appellee, in her petition, alleged that she was returning from the postoffice in the direction of her home, she found the street crossing blockaded by the freight train, which remained there for about thirty minutes without moving, and that she was compelled to await its removal, and that she became chilled, and contracted a cold from so doing, which resulted in the suffering and impairment of health above mentioned. All of this was alleged to have resulted from the negligence of the employes operating the railroad train, in permitting the same to remain across the street for the time mentioned, and that they by the exercise of ordinary care could have known that she was so detained in the street, and that she did not know and could not have known by the exercise of ordinary care and prudence, that she was exposing herself to the peril of a cold, and asked to recover a judgment in damages of $5,000.00 against the appellant.
Upon these issues the case went to trial before the court and a jury, and at the conclusion of the evidence for the appellee, the appellant moved the court to instruct the jury to return a diréct verdict for it, which motion was overruled.
The evidence, also, showed that the appellee saw no employe of the railroad company about the crossing while she was standing there. Evidence was introduced by the appellant of a young man and a young' lady, who came to the crossing while appellee was there, but on account of the weather immediately went into the restaurant, which was about ten steps away, and remained ten or fifteen minutes, when they came out, and the train had moved. The appellant, also, proved by three near neighbor women of the appellee, that they had known nothing of her sickness, nor had observed any impairment of her health, or her failure to perform her work, as she had done, before the occurrence complained of as her ground for damages. The appellant at the close of all of the evidence again moved the court to direct the jury to return a direct verdict for it, which motion was overruled, and it took exceptions thereto. The jury returned a verdict for the appellee in the sum of $2,000.00. The appellant filed grounds and moved the court to set aside the verdict, and to grant it a new trial on account of alleged errors of the court in overruling its motions for a peremptory verdict in its favor, and, also, on account of the admission of incompetent evidence against it, and the rejection of competent evidence offered by it; and because the court had misinstructed the jury over the objection of the appellant, and had refused to instruct the jury as requested by the appellant in writing. The court overruled the motion for a new trial and the appellant now appeals to this court.
It is insisted for the appellee, that inasmuch as the train was permitted to remain across the crossing of the
The appellant contends that inasmuch as there is no-penalty prescribed for a violation of the statute, which makes it unlawful for the railroad company to obstruct, a crossing with a train for a longer time than five minutes, and that it can only be punished for such conduct under an indictment charging it with guilt of a public nuisance by obstructing a street by permitting a train to remain across the street for an unreasonable length of time, that.no action for damages can arise to an individual from such obstruction.
It is true, there is no penalty prescribed for a violation by a railroad company of the statute making it unlawful to obstruct a street for more than five minutes, which is provided for by Section 768, Subsection 5, of Ky. Statutes, and for such reason no prosecution for a. violation of this statute can be maintained. This court-in discussing said statute in the case of Harvey v. I. C. R. R. Co., 159 Ky., 492, said:
“It is provided in Section 768 of the Kentucky Statutes, that a railroad company shall not obstruct any public highway or street, by cars or trains, for more than five minutes at any one time. This statute, which is-merely supplementary of the common law forbidding the unreasonable obstruction of highways, is, we think, sufficient to impose upon a railroad company the duty of leaving unobstructed highway crossings for a longer time than five minutes by any one train. In other words, a train may block a crossing for a period of not longer than five minutes at any one .time, but when the five minutes have expired, if the train is not ready to move, the crossing must be cleared by cutting the train in two or by some other method.”
Section 466, Ky. Statutes, provides: “A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed. ’ ’
If a person injured by a violation of a statute, where a penalty for its violation is imposed, can recover damages from the offender, there is no sound reason why one suffering injuries from the violation of a statute, where no penalty is imposed for its violation, cannot,
While one injured by the violation of a statute may recover from the offender such damages as he has sustained by reason of the violation, the violation of the statute must be the direct and proximate cause of the injury complained of. One cannot recover damages of another merely because such other has violated a statute.
Another principle, which underlies a right of recovery of damages, either for an injury sustained by reason of the violation of a statute, or for an injury sustained in any other way, is that the one seeking the recovery must have exercised such care as an ordinarily prudent person would have exercised under like or similar circumstances to have avoided receiving the injury. If, by his failure to exercise such ordinary care, he incurs the injury, and but for his failure to exercise such care, he would not have received the injury, he has no right of recovery. If his own negligence is the cause of his injury, he has no right to attribute it to another, or if his own negligence so contributes to his injury, that although the other is guilty of negligence, also, but for his own negligence the negligence of the other would have been harmless, he is barred from recovery. Another duty that is imposed upon everyone is, that when he has suffered an infraction of his rights, is to act in such a way as to minimize his loss and make his damages as light as possible. These principles are elementary. P. M. R. R. Co. v. Hochl, 12 Bush, 43; Sullivan v. Lou. Bridge Co., 9 Bush, 90; I. C. R. R. Co. v. Dick, 91 Ky., 434; L. & N. R. R. Co. v. Cox, 8 R., 961; C., N. O. & T. P. Ry. Co. v. Palmer, 13 R., 783, 81 Ky, 403; Johnson
Applying’ them to the uncontradicted evidence in the case at bar, it is evident that the appellant failed to perform its duty to appellee, by clearing the crossing at the expiration of five minutes, from the time the train was placed across the crossing, or else to have cut the train in two, and thereby cleared the crossing. It was not her duty to have hunted up the ones operating the train, as urged by appellant, and requested them to move it from the crossing, because it must be assumed that they knew that it was their duty to do so, and besides, in all probability, she could not have found them in the night without difficulty. Passing over the fact of the great difficulty of proving satisfactorily, that the cold of which appellee complains as the basis of her damages, was causecl by the appellant obstructing the street crossing with its train, or that she incurred it by standing for ten or fifteen minutes in the street, we will assume that her standing in the street was the cause of the cold, as the evidence tends to uphold that contention. The uncontradicted evidence further shows, that the appellant owed appellee no contractual obligation of any kind; that she was not in a hurry, nor was any duty upon her to pass over the crossing, at once, or that she suffered any damages, either general or special, by the loss of the twenty-five or thirty minutes of time, during which the train obstructed the crossing, as she went from there, when the crossing was cleared, to her husband’s store, and from there, after a time, to her home. It is undisputed, that at the time she reached the crossing from the postoffice, and found the street obstructed, she was then about ten steps from Candler’s restaurant, which was open and lighted and warm, and from, the door of which the movements of the train could be observed. Within less than a block, and on the street along which she had come from the postoffice, was the hotel and postoffice, both of which were open, lighted, and warm. Instead of seeking the warmth of the restaurant, as Miss McKeehan and her escort did, who approached the crossing about .the same time, she chose to stand.in the street for ten minutes, and feeling cold, she walked back down the street, past the hotel and post-office, and to the corner at Harris’ store, and then re
In the case of C., N. O. & T. P. Ry. Co. v. Rose, 115 S. W., 830, the appellee, Rose, had a contract with the railroad company to provide her a berth in a sleeper on a certain train. She met the train at Danville, at the middle of the night, when she was informed that she could not be furnished with a berth in the sleeper, and instead of going to a hotel, or to the house of her relatives, from which she came to the station, she drove five miles to her home, in the night, and from the exposure incurred a severe cold, and the consequences attending it. This court held that she could not recover on account of the cold and its consequences.
In Sandifer’s Admr. v. L. & N. R. R. Co., 89 S. W., 528, the decedent of plaintiff was a child seventeen months old, and was carried by its mother, grandmother, grandfather, and an uncle, at 4 o’clock A. M., to a railroad flag station, for the purpose of all of them taking passage upon the train. They found the door <of the waiting room closed, and while waiting a rain fell and drenched them all. The child incurred pneumonia and died. This court held that its administrator could not recover damages for its death, because, among other reasons, there was a storehouse about ten steps away, and a mill, where there was a fire, within twenty-five or thirty steps, in which they could have sheltered. The negligence of the parents was imputed to the child.
For the reasons given, the court below was in error when it overruled appellant’s motion to direct the jury peremptorily to find a verdict for it, both at the conclusion of appellee’s evidence, and at the conclusion of all the evidence.
Having arrived at the conclusion above stated, it is unnecessary to discuss the other questions raised upon the appeal.
The judgment appealed from, is reversed, and the cause is remanded to the court below, with directions to proceed in conformity to this opinion.