Kentucky Traction & Terminal Co. v. Humphrey

• Decision Date: 22 February 1916
• Citation: 168 Ky. 611,182 S.W. 854
• Parties: KENTUCKY TRACTION & TERMINAL CO. v. HUMPHREY.
• Court: Kentucky Court of Appeals

182 S.W. 854

168 Ky. 611

KENTUCKY TRACTION & TERMINAL CO. v. HUMPHREY.

Court of Appeals of Kentucky.

February 22, 1916

Appeal from Circuit Court, Franklin County.

Action by Mrs. T. Humphrey against the Kentucky Traction & Terminal Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Richard C. Stoll, of Lexington, Guy Briggs, of Frankfort, and Wallace Muir and William H. Townsend, both of Lexington, for appellant.

Scott &amp Hamilton, of Frankfort, for appellee.

THOMAS J.

The appellee, with her husband, was traveling in an open top buggy on the pike leading from Frankfort, Ky. to Midway, in Woodford county, Ky. and while yet in the corporate limits of the city of Frankfort, and between the arsenal in the city and the city cemetery, the horse attached to the buggy in which they were traveling became frightened at the approach of a car operated by appellant on its electric line of railroad running between Frankfort and Lexington, Ky. At the point where the accident occurred, and some distance beyond it in the direction from which the car was approaching, the track of the railroad runs upon a part of the highway and over its northern edge, leaving, however, ample and sufficient space for the public to travel over and upon the highway. According to the testimony of appellee and her witnesses, the approach of the car was discovered by her some 100 yards ahead of where she met it, and at this time the horse which she was driving began to scare and frighten at the approach of the car, which she and her witnesses claim was running at that particular place and time at a very rapid rate of speed. Her testimony shows that the horse became considerably unruly and was rearing up and otherwise manifesting evident fright sufficient to warn the motorman in charge of the approaching car of the prospective danger to the occupants of the buggy. Just before the car got even with the horse the latter made a sudden turn, throwing the right front wheel against the curbing of the street, causing it to smash and break, whereby the buggy at that end on that side fell to the street. The husband was sitting on that side, and the natural decline of the buggy would cause the body of the appellee to be precipitated against that of her husband, but she claims that either the back or side of the buggy seat struck against her back, and perhaps side, or rather the fall threw her body against these parts of the buggy and inflicted perhaps some slight injuries. We say "slight," because the record is perfectly barren of any evidence showing any bruises producing discoloration, and there was a total absence of any character of wound by laceration, break, or otherwise.

The evidence of appellant, as developed by its witnesses considerably preponderated to the effect that, while those in charge of the car saw the buggy approaching for perhaps the distance claimed by appellee and her witnesses, yet they say that the horse did not begin to take fright or to show any evidence of it until the car was within some 25 or 30 feet of the horse and buggy, and that it was running at that time at a rate of speed not exceeding from four to six miles per hour, and that the car was stopped as it got somewhere about even with the horse and buggy, whereupon the conductor jumped off of the rear end of the car and took hold of the bridle bits of the horse, when he soon became calm, and the car proceeded down the hill to the station of appellant in the city of Frankfort.

The testimony seems to be unanimous to the effect that about the time that the conductor took hold of the horse the husband of appellee got out of the buggy, followed by the appellee, and the appellee led the horse back into Frankfort, a distance of some 200 or 300 yards, and the husband pulled the buggy down the hill and carried it to some repair shop, where in about two hours it was repaired, and the journey to Midway was then proceeded with. The appellee remained at the house of her sister some four or five days, when she returned to her home in the country near Frankfort, and about four weeks thereafter she sent for Dr. Gwinn, a physician in the neighborhood, and he states that he found her suffering from labor pains. About four weeks thereafter, or eight weeks after the accident, the appellee gave birth to a stillborn child, which the doctor says appeared to be a full-developed one, but, as he thinks, had been dead for some days before the miscarriage.

This suit was filed in the Franklin circuit court on December 5, 1913, seeking to recover damages of the appellant in the sum of $10,000, it being claimed that the accident was the result of the negligence and carelessness of the motorman in charge of the car by failing to comply with the duties which the law imposes upon railroads, including electric railroads, as to travelers upon the highway immediately adjacent to their tracks, and it is claimed that the miscarriage was produced by and resulted from the injuries which plaintiff claims to have received. The answer is a denial of the allegations of the petition and a plea of contributory negligence, which plea was controverted, and upon the trial of the case there was a verdict and judgment in favor of appellee in the sum of $1,000, and, to correct the errors claimed to have been committed by the lower court, this appeal is prosecuted.

It will be observed that this accident occurred within the corporate limits of the city of Frankfort and on one of its principal streets. In such cases it has been determined many times by this court that it is the duty of those in charge of the car to exercise ordinary care to discover the proximity of travelers upon the street to its track and to exercise ordinary care to prevent injuring such travelers, whether by collision or by frightening animals traveling upon the street, causing them to produce injuries to their drivers or persons riding in the vehicle being drawn by them. Moreover, it is the rule that carriers must exercise ordinary care to prevent injuries by frightening animals upon highways paralleling the railroad track after the fright of such animals are well discovered in rural districts. L. & N. R. R. Co. v. McCandless, 123 Ky. 121, 93 S.W. 1041, 29 Ky. Law Rep. 563; L. & N. R. R. Co. v. Street's Adm'r, 139 Ky. 186, 129 S.W. 570, 139 Am. St. Rep. 471; Ky. Traction & Terminal Co. v. Downing, 152 Ky. 25, 153 S.W. 32.

The Downing Case, supra, was one against this same appellant while operating its car by the side of the turnpike, but not in the corporate limits of any city.

According to the testimony of appellee and her witnesses, her presence near to the track, as well as the fright of her horse, not only could have been seen by the exercise of ordinary care by the motorman, but same was seen by him, and he made no effort to either check the speed of the car or to stop it before the accident happened, showing that, if her testimony is to be believed as to the way the accident occurred, she would be entitled to recover from the appellant whatever damages that could be shown to have proximately resulted from her injuries.

In an effort to show that the miscarriage resulted as a consequence of the injuries or of the fright of appellee, she testified upon the trial as follows:

"Q. What did you do after you got the wheel on the buggy? A. Went on up home and stayed a few days. Q. To your sister's? A. Yes, sir. Q. Three or four days? A. Yes, sir; and then came back home again, and taken my bed. Q. What was your condition? A. I was in a bad condition; I was just like I am now. Q. In a family way? A. Yes, sir. Q. At what period, what month, how long? A. Six months. Q. Did you suffer any after you got back home? A. Yes, sir; off and on all the time. Q. Did you have a doctor? A. Yes, sir; Dr. Gwinn. Q. Did he prescribe for you? A. Yes, sir. Q. How did you suffer? A. From labor pains. Q. What part of your body did they affect? A. My back and sides. Q. Did you suffer in any other way--anything else. Did you have any discharges or anything of that kind? A. Yes, sir; off and on all the time until the baby was born. Q. Describe to the jury how frequent--was it frequent or not? A. No; well a right smart, too. Q. Heavy or light? A. Heavy during times. Q. What doctor did you have? A. Dr. Gwinn. Q. Did he live in the neighborhood? A. Yes, sir. Q. When was the child born? A. The 8th of October. Q. Was it dead or alive? A. Dead; it had done mortified. Q. Describe to the jury whether or not you suffered much or little? A. I suffered a good deal. Q. How about after that? A. I suffered with my back and sides. Q. Have you ever recovered? A. No, sir; my sides still hurts. Q. How soon after the accident was it before you commenced to suffer? A. Right at once. Q. Were you in bed any while you were at your sister's? A. Right around all the time I was up there. Q. After you got hurt? A. Yes, sir; all the time, off and on."

Further along in her testimony she testified that she continued to do her household work with the assistance of some of her children who were old enough to help her, there being seven of them, and that she was troubled some at that time and on until the day of the miscarriage with swollen feet and limbs to the extent of sometimes being unable to wear her shoes. She also testified to having had a miscarriage in September 1911, being twenty-five months before the one complained of in this suit, and at this first miscarriage the child had been conceived for the normal length of time. It was shown by the physicians who testified in the case that pregnant women are subject to the discharges testified to by appellee in that particular stage of pregnancy, and that they are also subject to swollen limbs and feet as testified to by her;...