Ky. T. & T. Co. v. Wilburn, Administrator
| Decision Date | 09 January 1925 |
| Citation | 206 Ky. 510 |
| Parties | Kentucky Traction & Terminal Company v. William Wilburn, Administrator, etc. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Franklin Circuit Court.
ELWOOD HAMILTON and WALLACE MUIR for appellant.
LESLIE W. MORRIS for appellee.
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 $4,500.00, 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 ten 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 four or five 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 fifty feet away from the rock pile and by another witness that it was some twenty or thirty 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 five feet. The appellee further proved by another witness that when the car was about fifty 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 could easily have stopped his car and so avoided the accident. It was for the jury to say...
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