OPINION OF THE COURT BY JUDGE GUFFY—REVERSING.
It is alleged in the petition that the plaintiff, now appellant, was, about the 31st December, 1896, by the gross negligence of the defendant, its agents and servants, thrown from his buggy, his leg broken, mashed, and bruised, and otherwise injured, and was caused great suffering of mind and body, loss of time, and was permanently injured, and sustained damages in the sum of $15,000; that at said time his buggy came in collision with the rail of one of the defendant's tracks on Baxter avenue, or Bardstown road, in Louisville and said rail was negligently permitted to stand up high above the level of the street, and was in a dangerous and defective condition, and was a nuisance, and had been maintained in said condition for a long time prior to said accident, and by reason of said condition he received the injuries aforesaid.
The first paragraph of the answer is a traverse of the allegations of the petition as to the injury complained of, as well as a traverse of all negligence on the part of defendant. The second paragraph pleads contributory negligence on the part of plaintiff, which plea was denied by reply.
At the conclusion of plaintiff's evidence defendant moved
the court to instruct the jury peremptorily to find for defendant, which motion was overruled by the court. At the conclusion of all the evidence, a like motion was made by defendant, and overruled by the court. A trial resulted in a verdict and judgment for defendant, and, plaintiff's motion for a new trial having been overruled, he prosecutes this appeal.
The grounds relied on for a new trial are as follows: "First, that the verdict is contrary to the evidence, and is not sustained by the evidence; second, that the verdict is contrary to the law; third, that the court erred in refusing to give instructions numbered 1, 2, and 3 offered by plaintiff, and in refusing to give either of said instructions, to which ruling of the court the plaintiff excepted at the time; fourth, that the court erred in giving instructions Nos. 1, 2 and 3 of its own motion, to the giving of which instructions and each of same plaintiffs objected and excepted at the time; fifth, that the court erred in admitting incompetent and illegal testimony, as shown by the stenographer's report of same, to the introduction of which testimony the plaintiff objected, and still excepts."
The plaintiff moved the court to give the following instructions to the jury:
"(1) The court instructs the jury that the law made it the duty of the defendant to so lay their tracks and maintain them in such condition and repair as not to interfere with the safety and convenience of the public travel on the streets occupied by their rails, and if the jury shall believe from the evidence that the defendant negligently failed to exercise ordinary care in the laying of the tracks, or in maintaining them in such condition and repair as to interfere with the safety or convenience of the public travel on the street, and that by reason of the negligent failure of
said defendant in laying its track, or maintaining it in such condition and repair, the plaintiff received the injuries complained of in his petition, then the jury shall find for the plaintiff, unless the jury shall believe from the evidence that the plaintiff, by his own negligence, contributed to the accident by which he received his injuries, and that but for his own contributory negligence the accident would not have happened.
"(2) The court instructs the jury that by the term `negligence,' as used in the instruction No. 1, is meant the failure by defendant to exercise that degree of care that ordinarily prudent persons observe under the same or similar circumstances.
"(3) The court instructs the jury that by the term `contributory negligence' is meant the failure on the part of the plaintiff to observe that degree of care that ordinarily prudent persons exercise under the same or similar circumstances for their own safety.
"(4) If the jury find for the plaintiff, they will assess his damages in such sum as will fully compensate him for any injuries he may have sustained by reason of the accident, and in so doing the jury may take into consideration his loss of time any physical pain and mental suffering he many have endured, and any impairment of his ability to earn money, the whole not to exceed the sum of $15,000, the amount claimed in the petition."
The court refused to give Nos. 1, 2, and 3, but gave No. 4.
Defendant then moved the court to give instructions Nos. 1, 2, 3, 4, 5, 6, and 7, which are as follows:
"(1) If the jury believe from the evidence that the plaintiff's horse and buggy had passed over defendant's tracks
and left the turnpike proper, and that the plaintiff, in an effort to bring his horse and buggy back upon the pike, pulled said horse against the extreme western rail of defendant's track, which is situated upon the western edge of the turnpike, and thereby broke the wheels of said buggy, and threw the plaintiff out and injured him, then the law is for the defendant, and the jury should so find; unless the jury shall believe from the evidence that the extreme western rail of defendant's track as originally constructed was dangerous and unsafe to the traveling public, and that the accident was due to, or caused by, such defective or dangerous condition in the original construction of said western rail, if any such there was, in which latter event the law is for the plaintiff, and the jury should so find.
"(2) The court instructs the jury that the plaintiff had no right to leave the turnpike proper with his buggy, and if he did so, and was injured in any effort to get back upon the turnpike, then the law is for the defendant, and the jury should so find.
"(3) If the jury believe from the evidence that the defendant's track was originally properly constructed, so as not to be dangerous to public travel, and further believe from the evidence that the track where the accident happened became dangerous, not by reason of any defect in said track or any change in the grade of said track, but by the reason of the failure of the turnpike company or the city of Louisville to maintain the roadbed of the turnpike or of the street, the law is for the defendant, and the jury should so find.
"(4) The court instructs the jury that it is not the duty of the defendant to keep the street or turnpike in repair
between defendant's tracks or next to defendant's rails; that the only duty defendant owes to the public is to properly construct its tracks so as not to be dangerous to public travel, and to maintain said construction as originally constructed; and that it is the duty of the city to maintain and properly construct its streets between defendant's tracks, and along the side of defendant's tracks, so as to prevent said tracks from becoming dangerous to public travel.
"(5) If the jury believe from the evidence that the plaintiff's horse became frightened and ran away with plaintiff, and by reason of said fright became uncontrollable by plaintiff, and they further believe that the injuries received by plaintiff were due to the fact that his horse ran away with him, then the law is for the defendant, and the jury should so find.
"(6) The court instructs the jury that it was not the duty of the defendant to so construct or maintain its tracks as to make it safe for persons to drive across them at an extraordinary rate of speed, or to persons who may be driving horses which are frightened and running away.
"(7) If the jury believe from the evidence that the tracks at the time plaintiff was injured were not in such condition as to be dangerous to the ordinary traveler upon the streets, then the law is for the defendant."
The court sustained plaintiff's objection to Nos. 2, 5, 6 and 7, and overruled the objections to Nos. 1 and 4. The court, then, upon its own motion, gave instructions 2, 3, and 5; also instructions 1 and 4, offered by defendant. The instructions so given by the court are as follows:
"(1) The court instructs the jury that it is not the duty of the defendant to keep the street or turnpike in repair beween defendant's tracks or next to defendant's
rails; that the only duty defendant owes to the public is to properly construct its tracks so as not to be dangerous to public travel, and to maintain said construction as originally constructed; and that it is the duty of the city to maintain and construct its streets between defendant's tracks alongside of defendant's tracks so as to prevent said tracks from becoming dangerous to public travel.
"(2) If the jury believe from the evidence that defendant's track was originally constructed so as not to be dangerous to public travel, and shall further believe from the evidence that the said track where the accident happened became dangerous, not by reason of any defect in the track or any change in the grade of said track, but by reason of the failure of the turnpike company or the city of Louisville to maintain the roadbed of the turnpike or of the street in a safe condition, and that such failure on the part of the city or turnpike caused the accident and injury to the plaintiff, the law is for the defendant, and the jury shall so find.
"(3) If the jury believe from the evidence that the plaintiff's horse and buggy had passed over the defendant's track, and had left the turnpike proper, and that the plaintiff, in an effort to bring his horse back upon the pike, pulled the said horse against the extreme western rail of defendant's track, which is situated...
