Floyd v. Paducah Ry. & Light Co.

• Decision Date: 17 October 1901
• Citation: 64 S.W. 653
• Parties: FLOYD v. PADUCAH RAILWAY & LIGHT CO. [1]
• Court: Kentucky Court of Appeals

64 S.W. 653

FLOYD v. PADUCAH RAILWAY & LIGHT CO. ^[1]

Court of Appeals of Kentucky.

October 17, 1901

Appeal from circuit court, McCracken county.

"Not to be officially reported."

Action by William Floyd against the Paducah Railway & Light Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

L. K Taylor, for appellant.

Humphrey Burnett & Humphrey, for appellee.

HOBSON J.

The Paducah street railway runs out to a suburb called "Rowland Place," the track being built on a strip of land at the side of the highway connecting the city with the suburb. Appellant, a deaf-mute, while returning to his home in Rowland, walking along the street car track, was ran down by a car coming up behind him, and brought this suit to recover for his injuries. At the conclusion of the evidence offered by him, the trial court peremptorily instructed the jury to find for the defendant, and he appeals.

In its answer the defendant alleged that when the car came up within 150 feet of the plaintiff, moving at its usual rate of speed the motorman in charge of it sounded his gong by ringing it repeatedly and continuously, but plaintiff did not look around; that the motorman also sounded his whistle continuously, not knowing plaintiff was deaf, but when the car was within 50 feet of plaintiff the motorman shut off the electricity, but did not stop the car, as he supposed the plaintiff would get off the track, and just before the car stopped it struck him. The plaintiff testified as to the extent of his injuries, and said he was walking along the track in ignorance of the approach of the car until he was struck. He offered to state that he stepped on the car track because of an unruly horse that was about to run over him on the gravel road, and that he went on it for safety. This was properly excluded, as it appears from the evidence he continued on the car track for some distance before he was struck, and it is evident he remained thereby solely for his own convenience. He also offered proof to the effect that the car track was much used by persons walking between Rowland Place and Paducah. This was also immaterial, and properly excluded, as the car track was not in the highway, and such use gave the public no right to it. After considerable evidence as to his injuries, he introduced Martin Rudolph who stated he was in his room, 30 yards from the place of the injury; that he heard the motorman's whistle blow, and went to the window, which was open, and 5 or 6 feet from him; heard the man halloo, and saw the car backing off a man; he heard no sound of the gong. As soon as he could get his shoes on he went out to the car. The motorman had the plaintiff on the car when he got to it. He heard the whistle blow but once, and, the window being open, if it had been blown more than once he thought it would have attracted his attention. The plaintiff offered to prove by him what the motorman said to him when he got to the car as to the cause of the accident, avowing that he would make this statement: "Yes, sir; I went immediately out there, and Mr. Bethel, the motorman, stated to me that he had seen the man on the track for some 150 yards, and that he rang his bell and blew his whistle, and that when he saw he was about to come into collision with the man he undertook to apply his brakes, but it was too late to save the man, and that the brakes were also defective, and slipped or failed to act." This evidence was excluded. There is some conflict of authority as to what is admissible evidence as res gestæ; but in this state the more liberal rule has been adopted. In McLeod v. Ginther's Adm'r, 80 Ky. 399, the statement of the conductor just after the collision, and by the side of the wreck, as to why it occurred, was admitted. In Railroad Co. v. Foley, 94 Ky. 220, ...