Greene v. Louisville Ry. Co.

• Decision Date: 16 February 1905
• Citation: 84 S.W. 1154,119 Ky. 862
• Parties: GREENE v. LOUISVILLE RY. CO.
• Court: Kentucky Court of Appeals

84 S.W. 1154

119 Ky. 862

GREENE v. LOUISVILLE RY. CO.

Court of Appeals of Kentucky.

February 16, 1905

Appeal from Circuit Court, Jefferson County, Law and Equity Division.

"To be officially reported."

Action by Gus Greene against the Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

B. H Young and M. W. Ripy, for appellant.

Fairleigh Straus & Fairleigh, for appellee.

HOBSON C.J.

Appellant Gus Greene, was driving his wagon eastward at the intersection of Twenty-Third and Portland avenues in the city of Louisville, when a street car propelled by electricity came up behind him, and ran into his wagon, throwing him to the ground, turning his wagon over, and injuring him, his horse, and his wagon. He was driving at the time on the track of the street railway laid in the street because that was the smoothest part of the highway; traveling at an ordinary trot, the wheels of the wagon being in the car tracks. He had a man on the hind end of his wagon to keep the boys from stealing the apples with which the wagon was loaded, and appellant had asked him, if he saw a car coming, to let him know. The first that appellant knew that a car was coming was when the man in the rear told him so. Appellant then turned his horse, and tried to get out of the way, but before he could do so the car ran into him. As shown by the proof for appellant, the car was running very rapidly, and gave no signal of its approach. An electric street light was burning at the intersection of Twenty-Third and Portland avenues, and the wagon was only 10 or 15 feet north of the crossing when struck. The motorman testified that he was not running fast, and did not see the wagon until he was within 30 feet of it, and after that he could not stop before he ran into it. He also testified that there was a dark place there from the shade of the trees. Appellant's proof was that there was a good light. The jury found for the defendant under the instructions of the court, and the plaintiff appeals.

The court gave the jury these instructions: "(1) The court instructs the jury that if the plaintiff was injured in the manner complained of in the petition, and that the accident and consequent injury, if any there was, was caused by the failure of the defendant or its employés to exercise reasonable and ordinary care in the operation of its car then the law is for the plaintiff, and the jury should so find. However, the court further instructs the jury that the plaintiff was bound to exercise that degree of care and caution for his own safety that a person of ordinary prudence would exercise under the same and similar circumstances, and if the jury believes that the plaintiff did not exercise such a degree of care and caution, and the accident was occasioned thereby, then the law is for the defendant, and the jury should so find, unless the jury should further find that the defendant did or could have discovered the peril of the plaintiff in time to have avoided the injury to him by the exercise of reasonable diligence. (2) The court instructs the jury that the defendant company has the superior, but not the exclusive, right to the use of that portion of the street occupied by its tracks, and that when the plaintiff undertook to use that portion of the street it was his duty to use reasonable diligence to keep out of the way of the defendant's cars using the same track. (3) If the jury believe from the evidence that after the motorman in charge of the car should, by the exercise of ordinary care, have discovered or did see plaintiff's vehicle upon the track, such motorman exercised ordinary diligence, and brought into operation all the means at his command to prevent a collision with the plaintiff's vehicle, then the law is for the defendant, and the jury should so find. (4) 'Ordinary care,' as used in these instructions, means that degree of care which a person of ordinary prudence would exercise under the same or similar circumstances." Appellant complains especially of the second instruction...