162 Ky. 560 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
This is a personal injury ease, in which plaintiff, Blanche Kennedy, recovered of the defendant, Louisville Bailway Company, a judgment for $800. The railway company appeals.
Befusal to direct a verdict in favor of the defendant, and error in one of the instructions, are relied on as grounds for a reversal.
The facts are these:
On July 8, 1913, plaintiff was a passenger on a west bound Bardstown Boad car, which was moving on the north side of Jefferson Street along one of two parallel tracks. When the car reached the northeast corner of Jefferson and Third Streets, it stopped for the purpose of permitting passengers to alight. Plaintiff got off at this point, and passing around the rear end of the car, started ;to cross the parallel track for the purpose of reaching the opposite side of the street. When she reached the parallel track, she was struck and injured by a Fourth Street car then being operated on the Second Street line. There is substantial evidence to the effect that the Fourth Street car was being operated at a high rate of speed, and that no warning of its approach was given.
It is insisted that because plaintiff did not look at the approaching Fourth Street car before she stepped on the parallel track she was guilty of contributory negligence as a matter of law. It may be conceded that while a different rule formerly prevailed, a number of the courts now make no distinction between steam railroads and street railroads with respect to the obligation of the pedestrian to look for an approaching car, because they say the danger from stepping on street car tracks where the cars are run by electricity and at a rapid rate and with greater frequency, is quite as great as the danger from stepping on steam railroad tracks, where the ears do not run so often; and common prudence requires that the care on the part of the pedestrain shall be increased in
(2) It is next insisted that the court erred in instructing the jury that it was the duty of the motorman in charge of the approaching car to have it under such control that it might be stopped at a moment’s notice. It is argued that the word “moment” means a space of time incalculable or infinitely small, and that the instruction imposes on the street car company a duty impossible of performance. In spite of counsel’s strong argument to the contrary, we see no reason to depart from the rule thus laid down, which, after due deliberation, was declared in the case of Louisville Ry. Co. v. Hutchins, 124 Ky., 79, 7 L. R. A. (N. S.), 152, 98 S. W., 275, and thereafter approved in Louisville Ry Co. v. Mitchell, 138 Ky., 190, and Louisville Ry. Co. v. Cremer, 142 Ky., 340. Where a car on a parallel track is approaching another car which has stopped to discharge passengers, other courts have recognized the necessity for a high degree of caution under the circumstances. Thus it is said that “when a train is stopped to let off or take on passengers, a train on the reverse course should not be allowed to pass the stopping train except it be on such caution and noticeable signals as will be reasonably calculated to avoid the possibility of injury to passengers. Capital Traction Co. v. Lusby, 12 App. D. C., 295. In the case of Bremer v. St. Paul R. Co., supra, a duty was imposed on the motorman of having his car under such control that he could stop it
Judgment affirmed.