Louisville City Ry. Co. v. Hudgins

• Decision Date: 12 December 1906
• Citation: 124 Ky. 79,98 S.W. 275
• Parties: LOUISVILLE CITY RY. CO. v. HUDGINS.
• Court: Kentucky Court of Appeals

98 S.W. 275

124 Ky. 79

LOUISVILLE CITY RY. CO. v. HUDGINS.

Court of Appeals of Kentucky.

December 12, 1906

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

"To be officially reported."

Action by Maud Hudgins against the Louisville City Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Fairleigh Straus & Fairleigh, Forcht & Field, and Greene & Van Winkle for appellant.

Chesley H. Searcy, for appellee.

CARROLL C.

The appellee, a passenger on one of appellant's cars going west, got off at Twenty-Second street and Portland avenue, on the north side of the street, and, after alighting, passed behind the car for the purpose of going to the south side. As she was crossing the south track a car on this track going east struck and seriously injured her. From a judgment and verdict in her favor, this appeal is prosecuted.

The negligence complained of as stated in the petition is that the east-bound car was running at a high and dangerous rate of speed, and, without warning to appellee, ran into and against her, and that her injuries were caused by the carelessness and negligence of appellant, its servants, and agents, in failing to give warning of the approach of the car to the crossing, and in operating and managing the car in a careless and negligent manner.

The chief, and in fact only, ground of complaint is alleged error of the court in the qualification of discovered peril added to instruction No. 2, which reads as follows: "It was the duty of plaintiff when she started across the tracks of the defendant at the place mentioned in the petition to exercise ordinary care for her own safety, and, if you shall believe from the evidence that at that time she failed to exercise ordinary care for her own safety, and, by reason of such failure, she helped to cause or bring about the injury of which she complains, and that she would not have been injured but for her failure in that respect, if any there was, then the law is for the defendant, and you should so find, unless you shall believe from the evidence that the employés of the defendant on its east-bound car could have seen the plaintiff by the exercise of ordinary care when she came in peril from the car, and, by the exercise of ordinary care, could have prevented the injury which the plaintiff alleges she sustained; if they could, then the law is for the plaintiff, and you should so find." To understand the pertinency of the objection to this instruction it will be necessary to state the substance of the evidence. There are two street car tracks at Twenty-Second street and Portland avenue. These tracks are 4 feet 6 inches apart, and, when the cars on each track are opposite to each other, there is a space of about two feet between them. The west-bound cars occupy the north track, and cars going east the south track. The car from which appellee alighted stopped at the usual place for the purpose of allowing her to alight. She got off of the rear platform on the north side of the car, and, as her home was on the south side of the street, she immediately turned and walked behind the car for the purpose of crossing the street, and, in doing so, stepped on the east-bound track. There is some conflict in the testimony as to whether she was struck by the east-bound car when she had crossed the first or the second rail, but when struck she was on the track, and there is evidence tending to establish that the east-bound car was running at a high rate of...