Kentucky Traction & Terminal Co. v. Roman's Guardian

• Decision Date: 06 December 1929
• Citation: 23 S.W.2d 272,232 Ky. 285
• Parties: KENTUCKY TRACTION & TERMINAL CO. v. ROMAN'S GUARDIAN.
• Court: Kentucky Court of Appeals

23 S.W.2d 272

232 Ky. 285

KENTUCKY TRACTION & TERMINAL CO. v. ROMAN'S GUARDIAN.

Court of Appeals of Kentucky

December 6, 1929

Rehearing Denied Feb. 7, 1930.

Appeal from Circuit Court, Fayette County.

Action by Pauline Jacqueline Roman's guardian against the Kentucky Traction & Terminal Company. Judgment for plaintiff and defendant appeals. Affirmed.

Wallace Muir and Allen Botts & Duncan, all of Lexington, for appellant.

Franklin Talbott & Chapman and W. E. Darragh, all of Lexington, for appellee.

TINSLEY C.

Claiming to have been severely and permanently injured by a broken trolley wire maintained by the defendant as a part of its street railway system in the city of Lexington, Ky. the appellee as plaintiff below, instituted this action in the Fayette circuit court against the defendant, to recover damages for that injury. She recovered a judgment for $15,000, and the defendant has appealed.

The first ground urged for a reversal is the trial court erred in overruling defendant's motion to require the plaintiff to elect which of the two causes of action it is claimed are set up in the petition she would rely on.

It is alleged in the petition: "That the trolley wires on said portion of defendant's line by reason of gross negligence and carelessness of the defendant were worn out, defective and unsafe and unfit for use and in need of repair, and that while defendant was running its said passenger car along its said line defendant's trolley wires broke and became loose, and whipped and slashed over the top and side of the said car while it was running; and emitted sparks and flames and terrorized the passengers, including plaintiff's said ward, and that defendant's motorman in the midst of the confusion, ran through its said car and out of the rear door of defendant's car at the same time directing the passengers to leave the car with him by that door, and that while plaintiff's said ward was, in compliance with said direction, endeavoring to escape by and from the rear door out of and from the car and away from the car and broken and separated trolley wire and lengths dangling down on and about the top and side of the car, she was, by one or more of said end lengths of the broken and separated trolley wires and by one or more electric currents escaping from said broken and separate trolley wire end lengths, hit, struck, burned on the left arm, and greatly shocked and injured."

It is contended that these allegations constitute separate causes of action and that it was entitled to have plaintiff elect which of them she would rely on. The allegation quoted does not charge two causes of action. It simply charged that because of its worn out, defective, and unsafe condition the trolley wire broke and whipped and slashed over the top and sides of the car, and that while plaintiff was endeavoring to escape from the car she was hit, struck, and burned by one of the end lengths of the wire. That, so far as her alleged injury is concerned, was a single occurrence; the injury sued for was a single injury resulting from the breaking of the wire and her contact with it.

It is next urged that defendant was entitled to a directed verdict on the grounds (a) that plaintiff offered no evidence to establish her allegation that the trolley wire was worn out defective, or unsafe; (b) that the breaking of the wire was not the proximate cause of her injury; and (c) that when the trolley wire broke, plaintiff was in a place of safety and voluntarily left it, and her injury, if any, is the result of her contributory negligence.

Plaintiff claims, and offered proof in support of her claim, that she was injured by being struck by the end of the broken trolley wire in her endeavor to leave the car after the wire broke and fell. The fact that the wire broke and fell is evidence that it was, at least, defective, and presents a case for the application of the doctrine of res ipsa loquitur. In accordance with that doctrine, it is usually held that where an accident to a passenger, who is himself without fault, is caused by a defect in any of those things which the carrier is bound to supply, or is the result of a failure in any respect of the carrier's means of transportation, or the conduct of its servants in connection therewith, a presumption of negligence arises as against the carrier, and where one suing a carrier for injuries shows that his injury was thus caused, he makes out a prima facie case for the recovery of damages. 5 R. C. L. 74, § 713; 77, § 715; Shinn Glove Co. v. Sanders, 147 Ky. 349, 144 S.W. 11.

The proximate cause of any injury is that which, in a natural and continuous sequence, unbroken by any independent responsible cause, produces the injury, and without which it would not have occurred. It is not a question of science or legal knowledge. It is to be determined, as a fact, in view of the circumstances of fact attending it, and like other questions of fact, it is for the jury to determine. It is a question for the jury when there is a conflict in the evidence respecting it, or if conflicting conclusions may be derived therefrom. Fullenwider v. Brawner, 224 Ky. 274, 6 S.W.2d 264.

Whether, in leaving the car at the time and under the circumstances proven, plaintiff was guilty of contributory negligence, was for the jury. The rule is that a peremptory instruction is not authorized unless, after admitting the testimony offered by plaintiff and every reasonable inference to be deduced from the facts proven to be true, and that reasonable minds could arrive at but one conclusion therefrom, then it is the duty of the court to give the peremptory instruction, but, if not so, then it is the duty of the court to submit the issue to the jury under proper instruction. Nelson v. Black Diamond Min. Co., 167 Ky. 676, 181 S.W. 341; Chicago, St. L. & N. O. R. Co. v. Armstrong's Adm'r, 168 Ky. 104, 181 S.W. 957.

It is shown that, when the car stopped, the trolley wire was whipping around the sides and ends of the car, emitting sparks and flame; that there was great excitement among the passengers; the motorman was excited and, after a hurried survey of the situation, advised the passengers to leave by the rear door, and all of them, with the exception of a negro boy, left by that door. While plaintiff testifies that because of the burning grass at the rear end of the car, she took time to gather her skirts tightly about her limbs before stepping to the ground (from which fact appellant argues she was not acting in an emergency, or had to choose quickly as to whether she would remain on the car or leave), yet it cannot be said that, in leaving the car at the time, she acted otherwise than as an ordinarily prudent person would have acted under the same or similar circumstances. Electricity is one of the deadliest agencies known to man. All persons who have reached the age of discretion have an instinctive fear of it, and it was peculiarly the province of the jury to determine what an ordinarily prudent person would have done under the same or similar circumstances. From what has been said, it follows that the motion for a peremptory instruction was properly...