174 Ky. 784 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing;
Defendants, Louisville Railway Company and Louisville and Interurban 'Railroad Company, operate an interurban line between the city of Louisville and Audubon Park, in Jefferson county. About noon on July 28, 1913, Lloyd Smith was struck and killed by an interurban car. Thereafter his administrator brought this suit against the two companies to recover damages for his death. The first trial resulted in a verdict and judgment for plaintiff in the sum of $5,000.00. Thé trial court awarded a new trial. The second trial resulted in a verdict and judgment for defendants. Plaintiff’s motion for a new trial and to have the first judgment substituted for the second judgment being overruled, he appeals.
The accident occurred near Spring Garden Station about two squares from the city limits on the Preston street road, one of the principal county highways, leading out of the city of Louisville. The defendants do not own a right-of-way separate from, and independent of, the highway, but their tracks are laid in, and along the west side of, the highway. The Preston street road runs north and south, and at the time of the accident both the decedent and the ear were going north. The proof for the plaintiff tends to show that decedent was wálking on the track and that he was in plain sight of the motorman for a distance of about 600 feet. While one witness claims not to have heard the sounding of the gong,
Besides other instructions not now necessary to be considered, the trial court told the jury in substance that it was the duty of the motorman in charge of the car to exercise ordinary care to avoid collision with any persons that might be upon the track, and that this duty included the duties of running the car at a reasonable rate of speed, of having it under reasonable control, and of keeping a lookout for persons upon the track, or so near the track as to be in apparent danger, and if they believed from the evidence that the motorman failed to observe any one or more of these duties and by reason thereof the decedent was struck and killed, the law was for the plaintiff and they should so find; but unless they so believed from the evidence, they should find for the defendants.
After plaintiff had introduced three witnesses on the question of the customary use by the public of defendants’ tracks as a walkway, the trial court made the following statement in the presence of the jury:
“We can assume from the testimony that the tracks were used as a pathway by the public. It is not necessary to introduce any more testimony on that point.”
At .the conclusion of plaintiff’s testimony, defendants’ motion for a peremptory instruction was overruled.
In due time after the verdict in favor of plaintiff was returned, defendants filed motion and grounds for a new trial. In granting the new trial the court delivered the following opinion:
“I think the instructions were probably correct. The verdict is large considering the testimony as to'Smith’s habits as to drink. On the whole case, I am in sufficient doubt as to the propriety of my remarks during Mrs.*787 Strohmeier’s testimony and as to their effect upon the jury, and feel justified in setting aside the verdict and having a second trial.”
The first question presented, and the only question that we deem it necessary to consider, is whether the lower court erred in setting aside the first verdict and granting a new trial.
It is well settled that circuit courts have a broad discretion in the matter of granting new trials, and that this discretion will not be interfered with unless it appears that it has been abused. Cherry Bros. v. Christian County, 146 Ky. 330, 142 S. W. 726; Brown v. L. & N. R. Co., 144 Ky. 546, 139 S. W. 782. However, when the reason given by the circuit court is not sufficient and none of the other grounds relied on are sufficient to authorize a new trial, it is error to grant a new trial. Ross v. Kohler, 163 Ky. 583, 174 S. W. 36; Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. 735.
The principal grounds-urged for a new trial were: (1) The court erred in its instruction in regard to the duties of the motorman in operating the car; (2) the verdict was not sustained by sufficient evidence; and, (3) the comment of the court with reference to the effect of the testimony concerning the use of the track by the public was prejudicial.
'Whether the comment of the court was prejudicial depends on the propriety of the instruction with reference to the duty of the motorman. For this reason, we shall first consider the instruction. The defendants insist that the instruction is erroneous under the rule laid down in the ease of Louisville Railway Company v. Smock, 147 Ky. 345, 144 S. W. 40. An examination of the facts of that case will show that there was a failure to prove that the accident occurred on a public highway, or that the tracks of the company were located in a public highway. For this- reason, the court held that persons using the tracks of the company at the place of the injury, took them as they found them, and the company was under no duty to run its cars at a reduced speed because of their presence. A different rule prevails where the company’s tracks are located in a public street or highway. While the right of a street railroad company to the use of that part of the public street or highway occupied by its tracks is paramount to that of the public, because of the fact that its cars run on a
Judgment reversed and cause remanded, with directions to enter judgment in conformity with the first verdict.