123 Ky. 629 | Ky. Ct. App. | 1906
Opinion by
Reversing.
In September, 1904,- Leo Edelen, a boy between eight and nine years of age, was run over and killed by one of appellant’s electric cars going west on Broadway between Twenty-Fifth and Twenty-Sixth streets, about 194 feet west of Twenty-Fifth street. Appellant asks a reversal of the judgment against- it, first, because the trial judge refused to give peremptory instruction; and second, for errors in the instructions.
We have reached the conclusion that the peremptory instruction asked should have been given, and will therefore state in some 'detail the evidence. Broadway, at the point where the accident occurred, is 50 feet from curb line to curb line, and is occupied by two street car tracks. Leo Edelen had been playing a game called “dainty” with two other boys, and these two companions and the motorman were the only eye-witness to the accident. The boys had quit
The principal question in the case is, was the mo
Our attention has been called to the case of Louisville Railway Company v. Walker, 94 S. W. 635, 29 Ky. Law Rep. 663; but the facts are very different from those here presented. There the car was running at a high rate of speed, and the motorman testified that when about 20 feet 'from the child he saw her start across the street, going in the direction the car was running. Other witnesses testified that the child left the curbstone and started diagonally across the street when the car was more than 200 feet away, and that the car could have been stopped before reaching the child, who fell on the track. Nor are the cases of S. Cov. & Cin. Ry. Co. v. Herklotz, 20 Ky. L. Rep. 750, 104 Ky. 400, 47 S.W. 265; Pasamaneck v. Louis. Ry. Co., 98 Ky. 195, 17 Ky. L. R. 763, 32 S. W. 620; Owensb. City Ry. Co. v. Hill, 56 S. W. 21, 21 Ky. L. Rep. 1638, in point, as they deal with facts very different from those here presented. Under the
The judgment is reversed, with directions for a new trial in conformity to this opinion.
Petition by appellee for rehearing overruled.