City of Owensboro v. Winfrey

• Decision Date: 25 March 1921
• Parties: CITY OF OWENSBORO v. WINFREY ET AL. OWENSBORO CITY R. CO. v. WINFREY ET AL.
• Court: Kentucky Court of Appeals

229 S.W. 135

191 Ky. 106

CITY OF OWENSBORO v. WINFREY ET AL.

OWENSBORO CITY R. CO. v. WINFREY ET AL.

Court of Appeals of Kentucky.

March 25, 1921

Appeal from Circuit Court, Daviess County.

Action by Eliza Winfrey and others against the City of Owensboro the Owensboro City Railroad Company, and Henry S. Berry. From judgments for plaintiffs against the defendants other than Berry, defendant City appeals, and defendant Company moves in the Court of Appeals for leave to appeal, and plaintiffs bring cross-appeal against defendant Berry. Judgment against defendant City reversed, motion of defendant Railroad Company for appeal sustained, appeal granted, and judgment against it reversed. Judgment in favor of defendant Berry affirmed, and new trials for other defendants granted.

E. B Anderson, of Owensboro, for appellant Owensboro City R. R Co.

La Vega Clements, of Owensboro, for appellant city of Owensboro.

Birkhead & Wilson and T. F. Birkhead, all of Owensboro, for appellees.

THOMAS J.

On the morning of August 27, 1918, between 8:30 and 9 o'clock Martin Winfrey, a colored man about 61 years of age, received an electrical shock, resulting in his death, and this suit was filed by the appellees, his widow and children, against the city of Owensboro, Owensboro City Railroad Company, Henry S. Berry, and the administrator of the deceased, seeking to recover damages for his death against all of the defendants except the administrator, it being alleged that he declined to institute the suit, and for that reason he was made a defendant. The defendants, other than the administrator filed separate answers, denying the negligence alleged in the petition, and each of them pleaded contributory negligence on the part of the deceased, and in a third paragraph relied upon a written compromise agreement made with the administrator, the widow, and some of the children, whereby the defendant, city of Owensboro, paid in full settlement of all damages against all persons concerned the sum of $300. Appropriate pleadings filed by plaintiffs denied the alleged contributory negligence, and sought to avoid the compromise upon the ground that when it was executed the administrator, widow, and children were not aware of the facts concerning the accident resulting in the death of the deceased, and did not understandingly execute it, and it was therefore insisted that it was not binding; but there was no tender of, or offer to return, the sum paid as a compromise or any part of it. The averments of plaintiffs in avoidance of the compromise settlement were denied, and upon trial the jury returned a verdict in favor of the defendant Berry, but returned one against the city of Owensboro for the sum of $750, and one against Owensboro City Railroad Company for the sum of $250. Each of the defendants against whom verdicts were returned filed motions for a new trial, which were overruled, and judgment was pronounced against each of them, but no credit was given for the amount paid in the compromise settlement. To reverse the judgment against it the city of Owensboro has prosecuted an appeal, and the Owensboro City Railroad Company has entered motion in this court for an appeal from the judgment against it, and plaintiffs have obtained a cross-appeal against the defendant Henry S. Berry.

The accident resulting in decedent's death was a most peculiar one, and the undisputed testimony shows that it happened in this way: The deceased at the time of the accident was employed by a man named Rudy to haul coal from a coal mine situated not far from the city of Owensboro, and in doing so he traveled a portion of the way over a public road in Daviess county, known as the Ewing road, which runs north and south, and it comes into another public road in the county, known as West Main street extended, at a point about a mile and a half from the corporate limits of the city of Owensboro. A Mr. Heady was hauling coal for another at the same time and from the same mine, and on the morning of the accident Heady was driving in front with his wagon and the deceased following with his wagon immediately in the rear of Heady's. When they arrived at the point where the Ewing road comes into Main street extended they discovered that a pole upon which was strung two electric wires that went into the residence of the defendant Berry had been blown down the night before, and was across the mouth of Ewing road, and each of them was about 12 or 15 inches from the ground. Both of the drivers stopped, and Heady procured an old cross-tie off the right of way of the defendant Owensboro City Railroad Company, which ran along by the public road, and placed it on its end a few feet from the wires, and then let the tie fall across the wires so as to press them to the ground, which was muddy from a rain which fell the night before, and this created what the witnesses called "a spurting noise" as the wires came in contact with the muddy road. As the tie fell it separated the wires some 4 or 4 1/2 feet apart and about the same distance as that between the fore wheels and the hind wheels of an ordinary road wagon. Heady then took his scoop and commenced to cover up the wires with mud procured from the surface of the road, and called upon the deceased to assist him in doing so. The latter at first declined upon the ground that he was afraid he would be shocked and injured, but later he concluded otherwise, and took his scoop and assisted Heady in constructing two ridges over the two wires, which, according to the witnesses, were "about the size of a potato ridge." In the meantime other parties came up and warned both Heady and the deceased of the danger of undertaking to cross the wires, even in their covered condition, but Heady, who was in front, disregarded the warning and undertook to drive his team across the ridges, and when the fore wheels of his wagon went upon the first ridge, it being very soft and muddy, they pressed down through the ridge to the covered wire, and caused the team to be shocked, and it gave a lunge or jerk which put the front wheels on the next wire and the hind wheels on the first wire, and the wagon as well as the harness upon the team became charged from the covered live wires, but Heady managed to jump out without being injured. He immediately called to the deceased to assist him in unhitching the team, which was plainly undergoing a severe shock, but some of the parties present again warned the deceased not to do so, which warning he declined to heed, and as he approached Heady's team from one side the latter received a shock on the other side in his effort to unhitch the team from that side, and deceased immediately thereafter took hold of the traces on his side, receiving the shock which caused his death. It further appeared that before the parties undertook to cross the wires a witness, not only informed Heady and the deceased of the danger in crossing the wires, but further stated that she would go to the house of Mr. Berry, which was nearby, and telephone the electric company to turn off the current; but before she could do this the accident occurred as above outlined.

The first question therefore is, Did the court err in overruling the motion of each of the appellants, made at the close of plaintiffs' testimony, and also at the close of all the testimony, to direct a verdict in their favor upon the grounds of: (1) That the decedent was guilty of such contributory negligence as to defeat this suit brought to recover damages for his death alleged to be due to the negligence of the defendants; and (2) that the testimony failed to show any legal grounds in...