Chesapeake & O. Ry. Co. v. Gunter

• Decision Date: 25 April 1900
• Citation: 108 Ky. 362,56 S.W. 527
• Parties: CHESAPEAKE & O. RY. CO. v. GUNTER. [1]
• Court: Kentucky Court of Appeals

56 S.W. 527

108 Ky. 362

CHESAPEAKE & O. RY. CO. v. GUNTER. ^[1]

Court of Appeals of Kentucky.

April 25, 1900

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by Mary Gunter against the Chesapeake & Ohio Railway Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Ira Julian and John T. Shelby, for appellant.

Jas Andrew Scott, for appellee.

DU RELLE, J.

Appellee who is a woman 67 years old, obtained a verdict of $1,000 damages for injuries sustained by her by jumping or being thrown from her buggy by reason of her horse becoming frightened at appellant's passenger train at Walcutt's crossing; it being averted that no signal or warning of the approach of the train was given, and that the crossing at which the accident occurred was exceptionally dangerous, by reason of the railroad making a sharp curve there, and passing through a cut just before reaching the pike. The evidence as to whether a signal was given by the engine at the crossing is conflicting, as it is, also, on the question whether appellee used proper care in approaching the crossing. She testifies that she stopped and listened on approaching the crossing, but heard no signal of any kind and is confident that none was given. Two young men, however who were driving in a surrey just ahead of her, testify that when they reached the crossing they heard the whistle whipped up their horse in order to get across before the train, and signaled to appellee not to come on, but that she did not stop until their signal was given.

It is objected that the jury were not properly instructed. The objections urged to instructions 1 and 2 are possibly cured by the fourth instruction; but we think that the attention of the jury should have been directed, in those instructions, to the question whether appellee's horse became frightened by reason of appellant's negligence in failing to give warning of the approach of the train, and should not have merely directed their attention to the question whether appellant's agents "carelessly and negligently frightened the plaintiff's horse, causing it to throw her from the buggy," etc. The fourth instruction, after stating the duty of the employés in charge of the train to give notice by bell or whistle, continues: "The law also imposed upon the plaintiff, when crossing said crossing, to use ordinary care to ascertain the approach of such train, by looking and listening for said train, and, unless she did so use ordinary care to ascertain the approach of said train she was guilty of contributory negligence, and the verdict ought to be for the defendant." This is objected to, because, having required appellee to use ordinary care to ascertain the approach of the train, it does not define "ordinary care," except by erroneously limiting the amount of care which, under the circumstances of this case, would be ordinary. We are of the opinion that the court should have told the jury that it was plaintiff's duty to exercise such care as an ordinarily prudent person would exercise under similar circumstances to ascertain the approach of trains, and that it should not have limited the degree of care required by the words "by looking and listening for said train." These words, in effect, notified the jury that, under the circumstances in this case, it was not required that plaintiff should stop, in order to constitute ordinary care on her part. What constitutes ordinary care is, we think, a question for the jury, under the circumstances of the case on trial. The amount of care which an ordinarily prudent person would exercise is to be determined by the circumstances of the particular case. What would be ordinary care in one case might be gross negligence...