Foreman v. Western Union Telegraph Co.

• Decision Date: 05 March 1929
• Citation: 14 S.W.2d 1079,228 Ky. 300
• Parties: FOREMAN v. WESTERN UNION TELEGRAPH CO.
• Court: Kentucky Court of Appeals

14 S.W.2d 1079

228 Ky. 300

FOREMAN v. WESTERN UNION TELEGRAPH CO.

Court of Appeals of Kentucky

March 5, 1929

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by William B. Foreman against the Western Union Telegraph Company and another. From a judgment for defendant telegraph company, plaintiff appeals. Reversed.

J. L Richardson and J. Rivers Wright, both of Louisville, for appellant.

Humphrey Crawford & Middleton, of Louisville, and Francis R. Stark, of New York City, for appellee.

STANLEY C.

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 bicyle fell on Dr. 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 the messenger boys was stamped as they departed and 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 confiding 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, the plaintiff 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. St. Supp. 1928, § 2775. No doubt Dr. Foreman's vigilance was directed towards vehicles on Liberty street, which he had just crossed, and when he stepped on the sidewalk he certainly had no reason to expect a vehicle there. In this day of fast-driven motor vehicles the danger of walking on the street or road is recognized, and it is usually a question for the jury as to whether ordinary care was exercised where a pedestrian failed to observe an approaching vehicle. But the sidewalks are reserved for the use of pedestrians, and they have the superior right there. One may use them without being required as a matter of law to maintain a lookout for vehicles, whether they be self-propelled or manually driven.

In 13 R. C. L. 293, the law is thus stated: "There is no imperative rule of law requiring a pedestrian, when lawfully using the public ways, to be continuously looking or listening to ascertain whether vehicles are approaching, under the penalty that upon the failure so to do if he is injured his own negligence must be conclusively presumed."

And also on page 292: "Pedestrians using the sidewalks are not required to exercise any more care in walking thereon than such as is necessary to avoid injuries from other pedestrians walking thereon, the question of repair not being involved, and one who, while walking upon the sidewalk, is injured by a wagon backing upon him, is not guilty of contributory negligence merely because he fails to take to the street. He has a right to the use of...