134 Ky. 6 | Ky. Ct. App. | 1909
— Reversing.
Mamie Whitman, a little girl 12 years old, on the morning of November 22, 1906, was struck by a street ear of the Louisville Railway Company, and so injured that she died a day or so thereafter. She lived on the south side of Market street, between Eleventh and Twelfth streets, and was sent across the street by her mother to get some bread. She got the bread, and, as she was crossing the street on her way home, was struck by a car. There is a foot crossing over Market street between Eleventh and Twelfth streets not far from the center of the square. The accident occurred, according to the' proof for the plaintiff, 12 minutes before 6 o’clock, or according to the proof for the defendant 7 minutes after 6 o’clock. According to the proof for the plaintiff, it was a dark foggy morning and not light. According to the proof for the defendant, there was sufficient light to justify the putting out of the headlight on the car. The proof for the plaintiff was to the effect that the child was walking along on the crossing in ignorance of the approach of the car when she was struck by it, no signal if its approach being given, and there being no headlight on the car, the child not perceiving it until she was struck. The proof for the defendant was to the effect that the child saw the car and undertook to run rapidly across the track in front of it when she stumbled and fell between the rails just in front of the car, and too late for the motorman to avoid striking her. The defendant’s proof also tended to show that she was not on the crossing, but west of it, going diagonally across the street. But some of the bread that she was carrying was found after the accident
The plaintiff averred in his petition that the death of the decedent was caused by the gross negligence of the defendant’s agent in running, operating and managing the car, and in failing to give warning of the approach of the car to the crossing by gong, bell, or otherwise, and in running the car at a dangerous rate of speed’ Under these allegations, the plaintiff offered proof to the effect that there was no headlight on the ear. On motion of the defendant, this evidence was excluded on the ground that there was no averment of a want of a headlight. The plaintiff thereupon tendered an amended petition charging that there was negligence also in not having a headlight on the car. The court sustained the defendant’s objection to the filing of the amended petition, and the plaintiff excepted. One object of a headlight is to give notice to persons on the street of the approach of the car, and it is very evident from the record that the plaintiff’s attornéys were relying on the want of the headlight, and considered that the allegations of the petition were broad enough to cover the failure to give warning in any manner of the approach of the car. But whether' they were right or wrong in this we need not determine; for when by a mistake of counsel an allegation of the pleading is not as broad as the court rules necessary for the admission of evidence, which counsel rely on as the foundation of the case, the court should allow an amendment in furtherance of justice upon such terms as may be just, that through a mere slip a trial of the case on the merits
Instructions 1, 2, 4, and 5, given by the court, are correct as the pleading stood. Instruction 3 is as follows: “If you shall believe from the evidence that Mamie Whitman attempted to cross the track so close to the approaching car that the motorman in the exercise of ordinary care with the appliances at hand for the purpose of stopping the car was not able to stop it before injuring Mamie Whitman, then the law is for the defendant, and you should so find notwithstanding the fact that she was injured and died ” The proof for the plaintiff and the defendant both showed that the child went upon the track so close to the approaching car that she could not after this be saved. The proof for the defendant was that she fell'on the track and for this reason was struck, but' the proof for the plaintiff was to the effect that the car was running rapidly, that it was very dark, and that no warning or notice of the approach of the car was given. -Although the jury may have believed the evidence for the plaintiff to be true, still under this instruction they would have found for the defendant. A similar instxuction was approved in Lexington R. R. Co. v. Woodward (Ky.) 106 S. W. 853; Lexington R. R. Co. v. Van Laden’s Adm’r (Ky.) 107 S. W. 740; Louisville R. R. Co. v. Gaar (Ky.) 112 S. W. 1130: Louisville R. R. Co. v. Buckner’s Adm’r (Ky.) 113 S. W. 90. In all those cases the person injured was not at a crossing, but suddenly came out in the
Judgment reversed, and cause remanded for a new trial.