Lexington Ry. Co. v. Fain

• Decision Date: 26 April 1904
• Citation: 80 S.W. 463
• Parties: LEXINGTON RY. CO. v. FAIN.
• Court: Kentucky Court of Appeals

80 S.W. 463

LEXINGTON RY. CO. v. FAIN.

Court of Appeals of Kentucky.

April 26, 1904

Appeal from Circuit Court, Fayette County.

"Not to be officially reported."

Action by C. C. Fain against the Lexington Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

R. C Stoll and Morton, Webb & Wilson, for appellant.

Geo Denny, for appellee.

SETTLE J.

As the result of a collision between an electric car belonging to appellant and the spring wagon of appellee, the latter was thrown from the wagon and injured, for which he sued, and recovered of appellant in the court below $2,000 in damages it being averred in the petition that his injuries were caused by the negligence of appellant's servants in charge of the car. The accident occurred on Limestone street in the city of Lexington; and the injuries received by appellee consisted, as alleged, of the fracture of a small bone of the ankle, a bone of the foot, and a hurt of some sort of the hip and back. For some reason not explained in the record, Dr. Bullock, the surgeon who first attended appellee and bandaged his leg and foot, was not introduced as a witness. Dr. Barrow, another Lexington physician, was called later to see appellee, with Dr. Bullock, and testified that he did not look at the leg or foot, as it was not thought advisable to disturb the bandage, but examined the hip, which showed a bruise to the flesh, but neither fracture nor dislocation. Dr. Mathews, whose deposition was taken in the case, testified that he attended appellee several weeks after he returned to his home, in Jessamine county, but only treated him for fracture of one of the tarsal bones of the left foot. So it appears that appellee alone testified that the ankle bone was broken. It does, however, appear from the evidence that appellee remained in a Lexington hospital for 10 days after he was injured, that he was confined to his bed and room at home for six weeks, and had to use crutches for two or three months. While his injuries were both serious and painful, there is considerable doubt, under the evidence, as to their being of a permanent character, but we think the trial court properly left that question to the decision of the jury.

The evidence as to the manner in which appellee received his injuries is conflicting. It appears that the car, in approaching the place of the accident, had to do so upon a descending grade--in fact, down somewhat of a hill--notwithstanding which its rate of speed was not unusual or improper. Appellee's own testimony as to the manner of receiving his injuries is somewhat confusing, and that of his principal witness, Driscoll, hardly less so. Appellee testified that his mare, being frightened at the car, backed the spring wagon to which she was attached as the car approached, and that the hind wheels, or one of them, went upon the railway track in front of the car, which struck it and thereby threw him out. Driscoll testified that appellee drove from the west to the east side of the track, and that the car struck the hind wheels of the wagon as appellee was crossing the track after the mare and the front wheels had reached the east side. But considered altogether, the evidence introduced by appellee was to the effect that shortly after he entered Limestone street he saw the approaching car, when it was 200 yards or more from him, and when it got in about 300 feet of him his mare became frightened and uncontrollable;...