Kentucky Traction & Terminal Co. v. Wilburn

• Decision Date: 09 January 1925
• Citation: 267 S.W. 1090,206 Ky. 510
• Parties: KENTUCKY TRACTION & TERMINAL CO. v. WILBURN.
• Court: Kentucky Court of Appeals

267 S.W. 1090

206 Ky. 510

KENTUCKY TRACTION & TERMINAL CO. v. WILBURN.

Court of Appeals of Kentucky.

January 9, 1925

Appeal from Circuit Court, Franklin County.

Action by William Wilburn, as administrator of Oscar Norman Wilburn against the Kentucky Traction & Terminal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Elwood Hamilton, of Louisville, and Wallace Muir, of Lexington, for appellant.

Leslie W. Morris, of Frankfort, for appellee.

DIETZMAN J.

In this action brought by appellee as the administrator of the estate of his child, Oscar Norman Wilburn, deceased, against the appellant, for the negligent killing of his decedent, he recovered a judgment for $4,500, to reverse which this appeal is prosecuted. For reversal appellant insists that the lower court erred first in overruling its motion for a directed verdict; secondly, in the admission of evidence; and thirdly, in instructing the jury.

Oscar Wilburn, at the time he was killed, was about three years old. He lived with his parents on the west side of Murray street between Third and Fourth streets in the city of Frankfort. On the morning of the accident he had gotten out into the street in front of his home where some children were playing. He ran from the west side of the street to the east side, where there was a rock pile. Murray street at this point was and is very narrow, and the distance between the rock pile and the car track of appellant was a scant 10 feet. Pausing momentarily to pick up some rocks, the little child started back straight across to the west side of the street. At this time a street car of the appellant was going north on Murray street, between Third and Fourth, at the rate of some 4 or 5 miles an hour, as agreed to by all witnesses on both sides. Before the child got across the track he and the car collided, and he was so hurt that he died within an hour. The appellee proved by one witness that at the time the child started across the street this car was some 50 feet away from the rock pile and by another witness that it was some 20 or 30 feet away. It is admitted by both sides that there was absolutely nothing in the street to obscure the motorman's view or to prevent him from seeing that the child was approaching the track with the intention of crossing it in front of the car if he was so doing, and that under the conditions present at the time of the accident the car could have been stopped in a maximum distance of 5 feet. The appellee further proved by another witness that when the car was about 50 feet away from the rock pile the motorman instead of keeping a lookout ahead, was looking over to the house in which this witness was. The motorman denied that he was looking to the side of the street, and claimed that he was keeping a lookout ahead all the time he was coming down Murray street; that he never saw the child, and did not know that he had run over him until he felt a bump of the wheels of the car, and that the child must have run into the side of the car as the front part of the car never struck him. On the other hand, appellee introduced proof to show that the child was hit by the front corner of the car, and that the car was so constructed as to make it impossible for the child to get under the wheels by running into the side of the car. The jury was also permitted to inspect the car itself.

From this statement of the evidence it is obvious that appellant was not entitled to a directed verdict. If appellant's version of the accident be true, of course there was no liability on the part of the appellant, but, if the version of the appellee be the correct one, then the motorman was not keeping a lookout ahead when the child started back across the street and when it was apparent that he was going to try to cross the track in front of the car, at which time, under the admitted facts in this case, had the motorman been keeping the lookout, he...