Foreman v. Western Union Telegraph Co.

• Decision Date: 05 March 1929
• Parties: Foreman v. Western Union Telegraph Company.
• Court: United States State Supreme Court — District of Kentucky

Page 300

228 Ky. 300

Foreman v. Western Union Telegraph Company.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided March 5, 1929.

1. Municipal Corporations. — Whether individual defendant, as employee of codefendant telegraph company, caused injury to pedestrian, struck by bicycle ridden by one wearing uniform of such company's messengers, held for jury on conflicting evidence.

2. Municipal Corporations. — Where plaintiff did not charge negligence of any other employee of defendant corporation than codefendant, court did not err in confining instructions to issue of latter's negligence as corporation's employee, though answer denied that he or any other employee caused plaintiff's injury.

3. Municipal Corporations. — In action for injuries to pedestrian, struck by bicycle on sidewalk, plaintiff's admission of statement to rider, immediately afterward, that he was not expecting to see latter on sidewalk, and his testimony that he supposed he could have seen him, had he been looking, held not to warrant instruction on contributory negligence.

4. Evidence. — The Court of Appeals takes judicial notice of the ordinances of the city of Louisville, under Ky. Stats., Supp. 1928, sec. 2775.

5. Municipal Corporations. — Pedestrian may use sidewalk without being required, as a matter of law, to maintain a lookout for vehicles, whether self-propelled, or manually driven, as in case of bicycle.

6. Negligence. — In absence of contrary knowledge, actual or implied, one need not anticipate danger, which can arise only through breach of duty by another, but may assume that all precautions required of others for his protection have been or will be taken, whether they arise from common-law duty to exercise ordinary care to avoid injury to others, or by force of statute or ordinance.

7. Negligence. — Negligence is founded on duty, without which there can be no negligence.

8. Municipal Corporations. — Pedestrian, struck by bicycle on sidewalk, may recover for injuries sustained, unless facts were such as to give rise to reasonable belief that he was guilty of breach of duty contributing in some way to bring on injury.

9. Municipal Corporations. — Bicycle rider, violating peremptory duty, imposed by city ordinance, to keep off sidewalk, took risk of any injury to pedestrian with whom he might come into contact, and pedestrian cannot be held contributorily negligent in not seeing approach of bicycle.

10. Negligence. — Contributory negligence is not imputable to any one for failing to look out for danger, which he has no reasonable cause to apprehend.

11. Municipal Corporations. — Whether pedestrian, struck by bicycle on sidewalk, was contributorily negligent in failing to see bicycle approaching, was a matter of law, where the facts were undisputed.

12. Negligence. — Where there is no controversy about the facts, and but one conclusion can fairly be drawn from the evidence, it is a matter of law as to whether or not plaintiff was guilty of negligence, and instructions to the jury should so state.

Appeal from Jefferson Circuit Court

J.L. RICHARDSON and J. RIVERS WRIGHT for appellant.

HUMPHREY, CRAWFORD & MIDDLETON and FRANCIS R. STARK for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Reversing.

On the morning of December 15, 1926, Dr. William B. Foreman was walking north on the west side of Armory Place, or Center street, in Louisville, and after crossing Liberty street and stepping on the sidewalk he was run into violently by a boy on a bicycle, and knocked back into the street, with the boy and bicycle on top of him. His leg was broken, and he suffered severe, painful, and permanent injuries.

Dr. Foreman filed this suit for damages against the Western Union Telegraph Company and Sylvester Keifer, charging that the company and Keifer, as its servant and employee, acting in the line of his duty and scope of employment, with gross negligence and carelessness so operated, managed, and controlled the bicycle as to cause same to come into violent collision with the plaintiff and injure him. An answer and amendment denied that Keifer or any other employee of the company in any way caused the accident. A plea of contributory negligence was interposed, which was traversed. With the issues thus joined the case went to trial, at which time the petition against Keifer was dismissed. The jury returned a verdict for the defendant telegraph company, and the plaintiff appeals from the judgment rendered on that verdict.

It is undisputed that the rider of the bicycle at the time wore a uniform commonly worn by messengers of the Western Union Telegraph Company, with a red sweater on the outside. His cap bore No. 8 on the front, and, when he and the bicycle fell on Foreman, several yellow envelopes similar to those in which messages of the company are usually delivered fell from the boy's cap. He said his name was Sylvester. The doctor and another witness positively identified Keifer as the rider of the bicycle, and several others testified that he looked much like the rider, but they could not positively identify him. Keifer testified that he had been employed by the company as messenger, but quit its service on the day before the accident. Records of the company were introduced, showing that he was not in its employment on the day of the accident, and that he had quit the day before. On that day and previously he had worn cap No. 8, and the uniform of the company. But these records were not made from the original paper on which the time of messenger boys was stamped as they departed or returned from the office in the delivery of messages. This original record was not produced by the company. The sharp conflict in the evidence on this point, of course, authorized the submission to the jury of the issue as to whether or not Keifer, as the employee of the company, caused the accident.

Appellant contends that the court erred in confining the instructions to Keifer alone, as the employee of the defendant company, inasmuch as the answer denied that he or any other employee caused the injury complained of. The plaintiff did not charge negligence on the part of any other employee, but confined the issue solely to Keifer and the company. Having done so, the court was not authorized to submit any other issue, and hence no error was committed.

We are of the opinion, however, that it was error to give the instruction on contributory negligence, as there was no evidence to support it. It was in the usual form relating to the exercise by the plaintiff of ordinary care for his own safety. The only evidence on which the instruction could have been based was the admission of the plaintiff that, in responding to the statement of the boy, as he was getting up that he had not seen him he said, "No, and I didn't see you either; I wasn't expecting to see you on the sidewalk;" and his admission on the trial that, had he been looking, he supposed he could have seen the boy approaching him, although he was not expecting anybody to be on the sidewalk with a vehicle. No warning by bell or otherwise was given of the approach of the bicycle.

The conclusion that the instruction was not warranted is justified by considerations of common experience and the principles underlying the defense of negligence on the part of a plaintiff contributing to the accident out of which damages are claimed to have arisen.

It is the common experience of every one to walk on pavements without having their attention centered on the expectancy of meeting vehicles there, especially where, as here, the use of the sidewalks in that way is prohibited by law. The court takes judicial notice of the ordinances of the city of Louisville. Ky. Stats., Supp. 1928, sec. 2775. No doubt Dr. Foreman's vigilance was directed towards vehicles on Liberty street, which he had just crossed, and when he...