Blue Grass Traction Co. v. Ingles

• Decision Date: 01 November 1910
• Citation: 140 Ky. 488
• Parties: Blue Grass Traction Co. v. Ingles.
• Court: Kentucky Court of Appeals

140 Ky. 488

Blue Grass Traction Co. v. Ingles.

Court of Appeals of Kentucky.

Decided November 1, 1910.

Appeal from Scott Circuit Court.

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STOLL & BUSH for appellant.

FORD & FORD for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

The appellee in her petition against the appellant company to recover damages for personal injuries alleged to have been sustained by the negligence of its employes, charged that she was driving south in a buggy on a road partly occupied by the tracks of the company when one of its traction cars coming north on its track frightened the horse causing him to back the buggy on to the track in front of the approaching car, that struck it, thereby causing her to be thrown out on the ground. That the employes operating the car saw or by the exercise of ordinary care could have seen that her horse was frightened and unmanageable and was backing the vehicle towards the track when they were at least one hundred feet from her and in ample time to have stopped the car and prevented a collision, but that the employes in charge of the car and who were running the same at a high rate of speed, made no attempt to stop or prevent the collision until the car came within a few feet of the vehicle, and when it was too late.

She averred that by reason of the negligence mentioned: "She was seriously and permanently injured about the hip and limb and her said injuries are permanent and will cause her to be a cripple for life, and her body was otherwise bruised and injured from which injuries she suffered, and continues to be sick, sore and disabled, and suffered and still suffers great pain and distress, to her damage in the sum of one thousand dollars. That she has been incapacitated and prevented from carrying on her usual occupation that of a washer-woman, from which she received eight dollars per week for a period of six weeks, to her further damage in the sum of $48. That she has necessarily expended the sum of $25 in endeavoring to be cured of her said injuries and will hereafter necessarily expend the sum of $25 for further necessary medical treatment.

She prayed judgment for the sum of $1,098. The answer was a traverse and plea of contributory negligence, to which a reply was filed.

The evidence in behalf of appellee conduced to show that the collision occurred as stated in her petition, while the evidence for appellant company tended to show that the horse appellee was driving did not become frightened or unmanageable or commence to back upon the track until the car was within about ten feet of the buggy, and although the motorman when he discovered appellee's peril used all the means at his command, he could not stop the car in time to prevent the collision that resulted in the injuries to her.

A trial resulted in a verdict and judgment in favor of appellee for $500, and a reversal is asked for reasons that will be noticed in the course of the opinion.

The court in instruction No. 1 told the jury that: "If they believe from the evidence that at the time the plaintiff, Ellen Ingles, was injured by the defendant's car, if she was so injured, that the employes of the defendant who were in charge of said car, saw or by the exercise of ordinary care could have seen there was danger of said car striking the plaintiff's wagon, unless the said car should be stopped, and that after they saw or could have seen by the exercise of ordinary care such danger, they could have stopped said car in time to have prevented such collision, but failed to do so, and because of such failure on the part of said employes the plaintiff sustained the said injuries, and that at said time and place the plaintiff herself was exercising ordinary care for her own safety, the jury ought to find for the plaintiff."

In instruction No. 3 they were told that: "They should award her such a sum as she has necessarily expended for medical treatment in endeavoring to be cured of such injuries and as she will hereafter necessarily expend for that purpose, if any, and in addition thereto such a sum as will fairly compensate the plaintiff for any suffering, mental or physical, which she has endured and which it is reasonably certain from the evidence she will endure as a direct and proximate result of her injury, if any, and for any loss of time occasioned by said injury, and for any reduction of her power to earn money, not exceeding in all the amount of $1,098."

The objection made to instruction No. 1 by counsel for appellant is that it imposed upon the company a higher duty than the law exacted. The argument being that the motorman in charge of the car was only obliged to exercise ordinary care with the means at his command to stop the car after he discovered or in the exercise of ordinary care could have discovered the peril in which appellee was placed, whereas the instruction authorized the jury to find the company guilty of negligence if they believed that the employes, after they saw or in the exercise of reasonable care should have seen the danger she was in, could have stopped the car in time to have prevented the collision. That the question whether by the exercise of ordinary care with the means at his command the motorman could have stopped the car was ignored, thus putting upon the motorman the peremptory duty of stopping the car without reference to the character of care he employed in an effort to do so. This criticism of the instruction is well taken, and the failure to reduce in the instruction the duty of the motorman to the exercise of ordinary care with the means at his command to stop the car was prejudicial error. Under the instruction the jury had the right to find that the motorman was guilty of negligence in failing to stop the car, although he may have exercised ordinary care with all the means at his command to do so. Persons operating street cars are under a duty to exercise ordinary care to prevent injuring persons and to exercise ordinary care with the means at their command to stop the car when in the exercise of ordinary care it appears to be necessary to do so to prevent injuring travelers on the street or highway. But this is the extent of the duty imposed upon them by law. It is not negligence to fail to stop a car if the motorman in the exercise of ordinary care and with the means at his command cannot do so. This identical question was before us in Lexington Railway Company v. Woodward, 106 S. W. 853, and it was there said that "the law only requires that the motorman use ordinary care in the exercise of the means at his command to avoid the danger after it is discovered or by the exercise of ordinary care could not have been discovered by him."

It is also pointed out as error that the court failed to give an instruction defining "ordinary care," but a sufficient answer to this objection is that no instruction upon this subject was requested. If counsel for appellant desired an instruction upon this point, they should have requested one, and failing to do so it was not reversible error for the court to omit the instruction. If such an instruction had been asked we have no doubt the court would have given it. L. & N. R. Co. v. Harrod, 115 Ky. 877; South Covington & Cincinnati Ry. Co. v. Core, 29 Ky. Law Rep. 838; Nicola Bros. v. Hurst, 28 Ky. Law Rep. 87.

So much of instruction No. 3 as refers to the amount of damage the jury might allow on account of medical treatment and for loss of time is erroneous. It will be observed that in the petition appellee averred that: "She has necessarily expended the sum of $25 in endeavoring to be cured, and will hereafter necessarily expend the sum of $25 for further necessary medical treatment thereof."

But the instruction permitted the jury to award her "such a sum as she has necessarily expended for medical treatment in endeavoring to be cured of such injuries, and as she will hereafter necessarily expend for that purpose, if any." In other words, although the...