Kentucky & I. Bridge & R. Co. v. Singheiser

• Decision Date: 07 January 1909
• Citation: 115 S.W. 192
• Parties: KENTUCKY & I. BRIDGE & R. CO. v. SINGHEISER.
• Court: Kentucky Court of Appeals

115 S.W. 192

KENTUCKY & I. BRIDGE & R. CO. v. SINGHEISER.

Court of Appeals of Kentucky.

January 7, 1909

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

"Not to be officially reported."

Action for personal injuries by John Singheiser against the Kentucky & Indiana Bridge & Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Humphrey Davie & Humphrey and Edward P. Humphrey, for appellant.

Morton K. Yonts, for appellee.

LASSING J.

The tracks of appellant company are laid along Thirtieth street and at the point where Thirtieth street is crossed by Portland avenue appellant maintains gates for the safety of the public. These gates are operated by a watchman located in a tower, stationed at the intersection of these streets. While appellee was driving in an easterly direction along Portland avenue, he was injured about his body, and particularly his knee, by being struck by one of these gates, which was at the time being lowered because of the approach of a train. He sued to recover damages for his injuries, alleging that they were due to the negligence of the appellant company's servants in the operation of the gates. The answer traversed the material allegations of the petition, and pleaded contributory negligence. A reply controverting the plea of contributory negligence completed the issue. A trial before a jury resulted in a verdict in favor of the plaintiff for $3,000. A motion and grounds for a new trial were overruled, and the defendant company appeals.

The grounds relied upon for reversal are: That the verdict is not sustained by sufficient evidence, because the proof shows that the accident was caused by the contributory negligence of appellee; and, second, that the verdict is grossly excessive. Thirtieth street runs north and south; Portland avenue runs east and west. The gates are operated by a man stationed in the tower at the intersection of these streets. From the testimony of appellee it appears: That about 10 o'clock on the night of September 3, 1907, he was driving east along Portland avenue on the south side of the street. That as he approached the railroad crossing at Thirtieth street, he noticed that the blue lights, which hung on the end of the crossing gates, were in the air. From this he concluded that the crossing was clear. That, as he attempted to pass over the crossing, the gates were lowered. He passed under the west gate without being struck, but as his horse was passing under the east gate the south arm of the east gate struck his horse and flew back and struck him upon the knee, and caused the injury of which he complains. Appellee was a member of the fire department of the city of Louisville, and was stationed at engine house No. 13, which is located on Rudd avenue between Thirty-Fourth and Thirty-Fifth streets. At the time he was injured, he was on his way from his engine house, with several other firemen, to engine house No. 6, which is on Portland avenue between Twenty-Fifth and Twenty-Sixth streets. His purpose in going to this engine house was to remain there while the crew of No. 6 was out on a fire call. The petition alleges, and the proof shows, that the horse which appellee was driving was attached to a reel or hose wagon, and was going rapidly along Portland avenue, not as rapidly, perhaps, as it would have been driven in responding to a fire alarm, but still, according to the testimony of appellee, at a "fast trot."

It is insisted for appellant that, being familiar with the fact that appellant's tracks crossed Portland avenue at Thirtieth street, appellee should not have driven at the rate of speed at which he was going, when merely going from one engine house to another, that there was no necessity for such rapid driving, and that the slightest regard for his own safety would have enabled him to avoid the accident and consequent injury. Appellee is corroborated in his testimony as to the movement of the gates, speed of the horse, and manner in which the accident occurred by two members of the crew who were with him. Appellant introduced the watchman in charge of the tower, who testified: That he was in the tower which is located on the northeast corner of Thirtieth street and Portland avenue. That he saw the reel cart, or wagon approaching. That at the same time a train was approaching...