Creamer v. Louisville Ry. Co.

• Decision Date: 17 February 1911
• Citation: 142 Ky. 340,134 S.W. 193
• Parties: CREAMER v. LOUISVILLE RY CO.
• Court: Kentucky Court of Appeals

134 S.W. 193

142 Ky. 340

CREAMER v. LOUISVILLE RY CO.

Court of Appeals of Kentucky.

February 17, 1911

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Marion Creamer against the Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Edwards Ogden & Peak, for appellant.

Fairleigh Straus & Fairleigh and Howard B. Lee, for appellee.

SETTLE J.

Appellant a resident of Sellersburg, Ind., upon reaching the city of Louisville, took a Fourth street south-bound car, operated by appellee, to go to a cooper shop on N street, where he was employed. Upon reaching M street, the car stopped, and appellant got off of it on the west side, and immediately went around the rear end of the car to cross Fourth street to the east side. When in the act of stepping on the second railway track in that street, he was struck by one of the appellee's north-bound cars, as it passed the one from which he had alighted, and greatly injured upon his head and other parts of the body. Appellant sued appellee in the court below to recover damages for the injuries thus received, alleging that they were caused by the negligence of its servants in charge of the car with which he collided. Appellee by answer denied the negligence complained of, and pleaded contributory negligence on the part of appellant, but for which, it was alleged, he would not have been injured. The plea of contributory negligence was traversed by reply, thereby completing the issues. The trial resulted in a verdict for appellee, and appellant, having been refused a new trial, has appealed.

But two grounds are urged for a reversal: (1) That the verdict was contrary to and not supported by the evidence; (2) that the trial court did not properly instruct the jury. The first ground is without merit. While appellant and nearly all of his numerous witnesses testified that the car by which he was struck was running at a high rate of speed, that its gong or bell gave no warning of its approach, and that the force of the collision, by reason of the speed of the car, was sufficient to knock appellant 10 or 15 feet, the motorman and conductor on each of the cars, as did other witnesses introduced by appellee, testified that it signaled its coming by the sounding of the gong, and that in approaching and passing the other car its speed was reduced to a rate not exceeding 2 miles per hour. Moreover, some of appellee's witnesses testified that appellant came so suddenly from behind the car in which he had been riding and onto the track immediately in front of the car which struck him that the motorman in charge thereof did not have time to stop it before it ran against him. Among these witnesses was the motorman, who further testified that he was maintaining a constant lookout in front of the car, and that, when appellant came from behind the other car and stepped on the track in front of the moving car, it was in four feet of him, and that he (the motorman) made every effort possible to stop the car before it struck him, but was unable to do so. Appellant in testifying failed to state whether he saw the car before it struck him, but did say he did not remember that he looked to see if a car was coming. H. C. May, a passenger on the car in which appellant had been riding, testified that he called to the latter as he was alighting from the car, and warned him that a north-bound car was approaching, but that he did not need the warning.

It is apparent from the foregoing facts that it cannot fairly be claimed there was no evidence to support the verdict. Whether the verdict was against the weight of the evidence we are not required to determine. It is sufficient to say that there was evidence from which the jury had the right to determine whether appellant's injuries were caused by the negligence of appellee's servants or his own negligence, and their finding exonerating the former from responsibility will not be disturbed, as it was not without support from the evidence, or so contrary thereto as to have been unauthorized.

We are also unable to find any error in the instructions. In order that our approval of them may be better understood, we insert them in the opinion:

"(1) It was the duty of the motorman in charge of defendant's car being operated north on Fourth street near M at the time plaintiff claims he was injured to keep a sharp lookout for persons alighting from the south-bound car which he expected to cross the street immediately behind same, and to have the north-bound car under such control as that it might be stopped at a moment's notice, and to give timely notice or warning of the approach of said car to said place by ringing of bell or gong, and if the jury believe from the evidence that the plaintiff alighted from south-bound car at Fourth and M street on the 8th day of March, 1909, and went behind said car for the purpose of crossing the east track on which there was then being operated a car going north, was exercising ordinary care for his own safety, and further believe from the evidence that the motorman in charge of said north-bound car failed to keep a sharp lookout at said time and place, or failed to have said car under such control as that it might be stopped at a moment's notice, or failed to give timely warning of the approach of said car to

...