159 Ky. 664 | Ky. Ct. App. | 1914
Opinion of the Court by
— Reversing.
On January 25, 1913, Charles A. Vessels was struck- and killed by a car owned and operated by the Louis- i ville Railway Company. His administratrix, Susie Vessels, brought this action to recover damages for his, death. From a verdict and judgment in her favor for $2,500 the railway company appeals.
The accident occurred under the following circumstances :
Decedent was a driver of a milk wagon. He had driven his horse and wagon to a point on the west side of Preston Street, just north of its intersection with Brandéis street, for the purpose of delivering milk,to a customer by the name of Nussbaum, who conducted a grocery and saloon on the northwest corner of Preston and Brandéis Streets. At that time the horse was facing south. Decedent lived in the opposite direction. After remaining in the grocery a short time he returned to the wagon, and jumping in, began to turn his horse north towards his home. At that time a Preston Street car was proceeding south on the western track. When the horse had practically turned around and headed in the other direction the car struck the back of the wagon. Decedent was thrown into the street and run over by the car. The accident occurred about seven o’clock A. M., and all the witnesses agree that it was a dark and foggy morning.
Mr. Nussbaum testified that decedent drove slowly. The gong on the car was not sounded, and the car was going “mighty fast.” After the car struck the wagon it ran less than 30 or 40 feet. N. F. Patton stated that the car was going “pretty fast.” Did not hear the gong sounded. When he got to the corner he saw the horse and wagon standing perfectly still over the car track.
For the defendant the motorman testified that it was a dark and foggy morning, and he rang the bell continuously as the car went out Preston Street, and rang it just before the accident. When he saw decedent’s wagon it was standing by the curb. The horse was facing south. It was only 15 feet away when the wagon turned across the track. He immediately reversed the car, and did all in his power to stop it. From the time the horse began to cross the track his car went only 22 or 25 feet. After the car struck the wagon it went about eight feet. The car was going about five miles an hour. Did not see decedent look up when the gong was sounded. Was a few minutes behind time. The whole thing happened in a very short time. After the gong sounded it was too late for decedent to get out of the way. Prior to that time, however, witness had been sounding the gong.
(1) The first error relied on is the refusal of the court to grant a continuance on account of the absence of J. F. Hudson, the conductor in charge of the car at the time of the accident, or to permit the affidavit for continuance to be read as the deposition of the absent witness. The affidavit was made by defendant’s general superintendent. It sets out the facts to which Hudson, if present, would testify. Of the relevancy and materiality of these facts there can be no question. The only question is: Does the affidavit show due diligence ? It appears from the affidavit that Hudson was in the defendant’s employ at the time of the accident. A subpoena for Hudson was placed in the hands of the sheriff five days before the case was set for trial. At that time the last known' address of the witness in Jefferson County was given to the sheriff. The subpoena was returned “not found.”
(2) It is next insisted that the court erred in re-1 fusing to direct a verdict in favor of the defendant. This position is predicated not only on the claim that the evi
(3) It is next insisted that the court erred in refusing the following instruction:
*669 “The court instructs the jury that the defendant’s motorman was not bound in the exercise of ordinary care to anticipate that plaintiff’s decedent would change the course of the wagon at the time he appears from the evidence to have done so; and defendant’s said motorman was not, in the exercise of ordinary care, required to check the speed of his car with a view to averting a collision with said wagon until he saw, or by the exercise of ordinary care could have discovered, decedent’s peril. ’ ’
This instruction was properly refused. While it is true that defendant’s motorman was not bound to anticipate that the decedent would change the course of the wagon, yet he was still under the duty of having his car under reasonable control, and of giving timely warning of its approach. Nor is it true that the motorman was not required to check the speed of the car until, in the exercise of ordinary care, he could have discovered decedent’s peril. Under such circumstances, the street car company cannot run its cars at an unreasonable rate of speed, and then claim that they are excused from liability on the ground that the person injured came so suddenly on the track in front of the approaching car that the motorman could not, in the exercise of ordinary care, prevent the injury. This principle applies only in cases where the car is being operated at a reasonable rate of speed. Netter’s Admr. v. Louisville Ry. Co., 134 Ky., 678; Louisville Ry. Co. v. Buckner, 113 S. W. 90; Goldstein’s Admr. v. Louisville Ry. Co., 115 S. W., 194; Louisville Ry. Co. v. Gaar, 112 S. W. 1130; Lexington Ry. Co. v. Van Laden, 107 S. W. 740, 32 Ky. L. R., 1047; Hymarsh’s Admr. v. Paducah Traction Co., 150 Ky., 109, 150 S. W. 9; Louisville Ry. Co. v. Sheehan’s Admx., 146 Ky., 168, 142 S. W. 221.
Judgment reversed and cause remanded for new trial consistent with this opinion.