148 Ky. 126 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
This action was brought by the appellant to recover of appellee damages for injuries alleged to have been received by him through the negligence of the motorman in charge of one of its cars, in running the same against him. The trial resulted in a verdict and judgment in favor of the appellee and from that judgment this appeal is prosecuted.
Appellant was knocked from his feet by the collision with the car and fell with his head near the curbing of the street. It does not definitely appear from the evidence that his body was carried by the force of the collision immediately forward; on the contrary, as; he fell near the curbing, instead of the railroad track, it is probable that he was knocked outward and diagonally from the track.
The accident occurred in the outskirts of Louisville at the intersection of Ferndale a;venue and the Bards-town road. Appellant had walked from his residence on Ferndale avenue, half a square from the intersection
The answer of the appellee traversed the averments
There is great doubt from the evidence whether the injuries sustained by the appellant were of a permanent character. None of his bones were broken by the collision nor were any ¡serious bruises found upon his person. He was, however, confined to his home for several days, and attended by a physician, but about two weeks after the accident had recovered sufficiently to remove to the country with his family and take up his residence near Jeffersontown, in Jefferson County. It goes without saying, however, that though no permanent disability may have resulted from his injuries, in view of his having been knocked unconscious by the collision with the car, the injuries must have been such as to have caused severe pain and suffering, both physical and mental, as well as serious inconvenience and ¡some loss of time.
Although numerous grounds were filed by appellant in support of his motion for a new trial, only one of them seems to be relied on for a reversal; which is, that the court erred in giving instructions 3 and 4; it being insisted that each of these should have been qualified by the addition of the phrase: “Provided, that the motorman at the time was running his car at a .reasonable rate of speed.” Instruction No. 3 is, in meaning, an instruction on “the last clear chance,” and by it the jury were told that it was the duty of the motorman to run the car at a reasonable rate of speed and under reasonable control. Instruction No. 4 is based on appellant’s theory of how the accident occurred.' The criticism of these two instructions upon the ground urged would be sound if there had been any definite testimony
“If there had been any evidence tending to show that the car that -struck the deceased was running ¡at an unsafe or unreasonable rate of speed at the time of the collision the court should have inserted in Instruction No. 4, after the words, ‘the motorman in charge thereof’ the words, ‘if the car was running .at a reasonable rate of speed’ ”.
The above excerpt is but a reiteration of the law asi announced in the cases of Lexington Ry. Co., vs. Van Ladens’ Admr., 32 L. R. 1007; Louisville Ry. Co. vs. Buckner’s Admr., 113 S. W. 90; Louisville Ry. Co. vs. Gaar’s Admr., 112 S. W. 1130; and Netter vs. Louisville Ry. Co., 134 Ky. 678, in each of which the facts, unlike those of the Goldstein case and the case at bar, authorized the giving of an instruction containing the qualification now contended for by the appellant.
The only evidence introduced in appellant’s behalf, with respect to the speed of the car, was furnished by the testimony of the Alsups. Lancing Alsup, upon that point, .said: “The car was going at a pretty good rate of speed; I do not know how fast it would be; he (appellant) was. on The curve there where it hit him.” In the deposition of Dudley Alsup we find the following ¡statement: “I could not say what speed it was running; it was runnin'g a good gait — pretty swift — never stopped at Eastern avenue — never made any attempt to stop there — there was no one to get on — kept up the .same speed.”
It will be observed ¡that neither of the Alsups stated the car was running at an unusual, unreasonable or unsafe rate of speed. They evidently had no idea of the rate of speed of the car, and therefore contented themselves with the indefinite statement; the one, that it was running at a “pretty good rate of speed” and the other that it was running “pretty swift.” The ■several witnesses introduced in behalf of the appellee testified that the car was running át a moderate rate of speed that was neither unreasonable or unsafe.
It is, however, insisted for the appellant that evidence of the high rate of .speed at which the car was running was furnished by the facts of its knocking appellant a distance of 15 feet from where it struck
If, .as shown by appellee’s evidence without material contradiction, in approaching Ferndale avenue, appellee’s motorman sounded the car gong; ran the car at a reasonable rate of speed and had it under reasonable control; kept a lookout for the protection of persons upon the street on or near the railway tracks; and appellant, until about the time he was reached by the car, was walking at a safe distance from the track, and suddenly got in the way of and was struck by the car when it was so near him that the motorman could not, by the use of ordinary care, stop it in time to prevent his injuries, there should have been no recovery.
Appellant and his two witnesses failed to state that the car did not give the usual signals in approaching the intersection of Ferndale avenue and the Bardstown road, but merely testified that they did not hear the signals, if they were given. Such testimony is entitled to little weight, in view of the positive statements of the motorman, conductor and others on the car, that they were given and, of the further fact, that the attention of the appellant and his two witnesses was more particularly attracted to the west-bound ear, which was closer to them, and the signals of which .they did hear.