138 Ky. 190 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
Mrs. Annie B. Mitchell was a passenger on one of the south-bound cars on Second street. There are two tracks on Second street. The north-bound cars run on the east track, and the south-bound cars on the west track. Persons on the south-bound cars have to get off on the west side, and, if they live east of Second street, they have to go across both tracks to get to the sidewalk. Mrs. Mitchell got off at Ormsby and walked across behind her car, which was still standing there. Just as she was leaving the second track, she was struck by a north-bpund
The first point made on the appeal is that the judge before whom the casé was tried erred in refusing to vacate the bench under the affidavit filed by the defendant. The facts about the matter are these: When the case was called, the defendant filed an affidavit for a continuance on the ground of the absence of three witnesses. Before the motion for the continuance was disposed of by the court, one of the witnesses appeared, and thereupon the plaintiff consented that the affidavit might be read as the deposition of the other two witnesses. The defendant then announced ready, and a panel of 18 was drawn from which to select the jury. The plaintiff and the defendant each struck three from the list. At this time the defendant moved the court for a continuance of the case on the ground that it was surprised in that the witness who had appeared would not state what it was alleged in the affidavit she would state. It was stated in the affidavit that she saw the plaintiff just before she was hurt, and the witness would state that the plaintiff was not the person she saw. When this question was made, the court passed the case until the next day. On the next morning when the court met, the defendant filed an affidavit that the judge would not give it a fair trial. Tlie matters relied on in the affidavit all existed, and were known the day before. A motion of this sort must be made at the threshold, and not after other motions are made and disposed of, K. C. R. R. Co. v. Kenney, 82 Ky. 154; German Ins. Co.
The nest objection made is that the court should have instructed the jury peremptorily to find for the defendant. The plaintiff’s statement as to how the injury occurred is as follows: “I got off the car, and went around the rear end of the car to go to my home, and, when I got around the end of the car, I listened and there was no signal. I heard none, and I am confident -there was none, so I thought I was safe, and I started across, and the car got me on the track. I was very near off, and it caught my clothing. I hardly know how it was done, but it was bound to have caught my clothing, for I seemed to be whirled in the air, and came down on this shoulder and arm and side of the head. Q. Where were you when you saw the approach of the car? A. I was on the track. Q. Which way was the car going? A. North. Q. Then after you saw the car, and saw it approaching, what did you do? A. I tried to get out of the way of it, of course. Q. Did you run? A. I didn’t run. I just walked faster, and made an effort to get off. Q. How was the car coming with reference to speed, was it coming fast or slow? A. My impression was that it was fast. Of course, I would have gotten across if it had not been. Q. Had you at any time heard the signal of this car, any gong or any bell at all? A. Not until just before I was struck. Q. About where were you when you thought you were being tossed into the air? A. Well, I was just about the edge of the track. There w'as one of my feet had a mark on the shoe, on
On practically this state of facts a recovery was sustained in Louisville Railway Co. v. Hudgins, 124 Ky. 79, 98 S, W. 275, 30 Ky. Law Rep. 316, 7 L. R. A. (N. S.) 152, and under the rule laid down in that case, the court did not err in refusing to give the jury a peremptory instruction to find for the defendant. The railway company proved by its witnesses that the north-bound car was going very slow
Practically a similar view was taken by the United States Supreme Court in Chunn v. City R. R. Co.,
The rule as to contributory negligence in this class of cases has been often laid down by us. It is essential that reasonable signals of the approach of the car should be given, and it is equally essential that the car should be under such control that, if persons are seen on the crossing, danger to them may be. avoided by proper care on the part of the motorman. Contributory negligence never bars a recovery where the danger of the person is discovered in time for those in charge of the car by ordinary care to avoid injury to him. But what the motorman in fact sees is not the criterion by which the liability of the company in such cases is to be determined. If he fails to see what he would have seen if he had kept a lookout, the company is as liable as if he in fact saw the person. To hold otherwise would be to allow his disregard of his duty to keep a lookout to place him and the company in a more favorable position than if he had done his duty in this respect.
The plaintiff’s injuries are serious and permanent. The amount found in her favor is not excessive; and we do not see that the defendant could have been •prejudiced i:y the remark made by the attorney to
Judgment affirmed.