Louisville & N.R. Co. v. Hadler's Adm'R
| Decision Date | 16 February 1937 |
| Citation | 269 Ky. 115 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Louisville & N.R. Co. et al. v. Hadler's Administrator, and four other cases. |
3. Municipal Corporations. — "Ordinary care" required of municipalities in keeping their streets in a reasonably safe condition for public travel, and of persons using streets in caring for their own safety, means the care that would be exercised by an ordinarily prudent man under similar circumstances, and means the same whether applied to former times or to the present day.
4. Municipal Corporations. — Whether means adopted by a municipality to warn persons using the streets of a dangerous condition therein are reasonably sufficient is for jury, as regards liability of municipality for injuries sustained through such dangerous condition.
5. Municipal Corporations. — Municipalities are not obliged to erect rails or barriers sufficiently strong to keep an automobile from going over an embankment in or near the highway.
6. Municipal Corporations. — Municipality must exercise ordinary care in adopting such means as may be necessary to warn ordinarily prudent travelers of obstructions or pitfalls or extraordinary or unusual conditions which may render travel on a street dangerous.
7. Municipal Corporations. — Persons using streets or other highways must exercise ordinary care for their own safety.
8. Municipal Corporations. — Persons using streets in the exercise of ordinary care for their own safety have the right to assume, in absence of notice to the contrary, that the streets are reasonably safe for public travel, and are not required to be constantly on the alert to discover dangers in their paths to which their attention has not been called, or which could not be discovered by ordinary care.
9. Railroads. — Municipality, if it had erected and maintained bridge across railroad tracks, would have been required to give warning of the dangerous situation arising from sharp curve in bridge, as regards liability of railroads which erected and maintained bridge under contract with the municipality for injuries and deaths resulting allegedly from railroads' failure to give adequate warning of the situation.
10. Railroads. — Railroad companies which had erected and maintained bridge under contract with municipality held to have assumed the obligation of municipality in respect to bridge, and hence obligated to keep the bridge in repair and safe for travel, as regards liability of railroad for injuries and deaths occurring when automobile went over side, allegedly because of insufficient warning of dangerous curve in bridge.
11. Railroads. — Whether railroads which constructed and maintained bridge under contract with municipality were negligent in failing to give sufficient warning of sharp curve in bridge, which was the alleged cause of automobile going over side of bridge, and hence were liable for injuries and death resulting therefrom, held for jury.
12. Railroads. — In actions for injuries and deaths occurring when automobile went over side of bridge, allegedly due to insufficient warning of sharp curve in bridge and failure to provide sufficient guard rails to protect vehicles from leaving the roadway, instruction requiring the maintenance of a guard rail sufficiently strong to prevent motor vehicle from running off bridge held error.
13. Railroads. — In actions for injuries and deaths occurring when automobile ran over side of bridge, instructions on contributory negligence held authorized where there was evidence tending to indicate that automobile was being driven at a high rate of speed.
14. Negligence. — Ordinarily, negligence of an owner who is driving his automobile is not imputable to guest, and will not preclude guest from recovering against another unless the owner's negligence was the sole cause of the injury.
15. Automobiles. — Automobile guest has the duty of exercising ordinary care for his own safety, and cannot sit idly by and ignore obvious dangers without protest or warning to the driver, and then in the event of accident hold the driver or others liable in damages.
Appeal from Campbell Circuit Court.
ODIS W. BERTELSMAN and GALVIN & TRACY for appellants.
ARTHUR C. HALL and CLARKE E. KEENEY for appellees.
OPINION OF THE COURT BY CREAL, COMMISSIONER.Reversing.
The right of way and tracks of the Chesapeake & Ohio Railway Company, hereinafter called the C. & O., and the Louisville & Nashville Railroad Company, hereinafter called the L. & N., parallel each other where they cross Central avenue between Twelfth and Thirteenth streets in the city of Newport. The elevation at the intersection of Central avenue with Thirteenth street is 32 feet higher than the tracks of the C. & O., and something over 24 feet higher than the tracks of the L. & N., and is over 35 feet higher than the intersection of Central avenue with Twelfth street. Some time during or shortly after the year 1889, these railroad companies under a contract and agreement with the city constructed a bridge over their tracks, beginning at a point near Thirteenth street and running above and with the center line of Central avenue to a point near Twelfth street where it made a sharp curve to the right and ran near or with the south side of Twelfth street to Columbia street.
Between 4 and 4:30 o'clock on Sunday morning, June 12, 1932, a Cadillac sedan owned and driven by Harry F. Hadler, in which Everett King Thomason, Malcolm T. King, Richard C. Thomas, and Frank V. Scott were also riding, turned to the right from Thirteenth street and started to cross the bridge, and either because of the failure to observe the curve in the bridge or because of inability to negotiate it, the automobile went ahead across the sidewalk, crashed through the railing, and fell into Central avenue in or near the intersection with Twelfth street. All of the occupants of the automobile were killed except Thomas, who sustained severe injuries.
In actions based on alleged negligence, as hereinafter more particularly set out, Thomas and the administrators of his companions have recovered judgments against the C. & O. and the L. & N., and the companies are appealing. The five cases were heard together below, and as questions presented in each are identical, they will be treated in one opinion.
A number of points, some of which are subdivided, are set forth and discussed in brief for appellants. They may all properly be disposed of in connection with the discussion of a few of the grounds urged for reversal which, in substance, are: (1) That the court erred in overruling demurrers to the petitions; (2) error in overruling motion of appellants for peremptory instructions at the close of the evidence for appellees and at the close of all the evidence; (3) that the instructions given were erroneous; (4) that the court erred in refusing to give an instruction on contributory negligence and in refusing to give other instructions offered by appellants. These questions call for at least a brief recital of the facts as disclosed by the record.
All the victims of the accident resided in Ohio, and according to the evidence of Thomas, he and Thomason met by chance in front of a restaurant in Elmwood, Ohio, which is a few miles from Cincinnati. While they were talking, Hadler came from the restaurant and Thomason asked him if he wanted to go to a party over the river about 4 or 5 miles beyond Fort Thomas. Hadler indicated a willingness to go, so the three men got into his automobile and after going a few blocks met and were joined by Scott, and in passing through St. Bernard, King joined the party. They stopped at a cafe in Cincinnati, where they remained until shortly after 2 o'clock, and then resumed their journey, passing through Newport, Fort Thomas, and on out the Alexandria pike 4 or 5 miles. It seems that Thomason did not know definitely where the party was to be, and failing to locate the place, they returned by way of Alexandria pike, and upon reaching the railroad crossing at Twelfth street in Newport found it blocked by a train. After waiting there for a few minutes, at the suggestion of Thomason, who stated that he knew a way around, they turned back to Thirteenth street and followed it to Central avenue, where they turned to the right and proceeded on to the overhead bridge. According to his evidence the lights on the automobile were good and afforded about the ordinary visibility. He testified that Hadler changed gears on entering Central avenue and "could not have gone over 8 or 10 miles an hour from there"; that it was drizzling rain and was dark and misty; that he was looking ahead but did not discover the curve in the bridge or the railing at the outside of the walkway until they were right up to it, and he heard the squeak of the brakes when applied by the driver. He was permitted to state without objection that Hadler did not see the guard rail until he was right onto it. His evidence indicates that he assumed this from the fact that the driver suddenly applied the brakes at that time. He remembered nothing further in connection with the accident.
The bridge from the end near Thirteenth street to a point beyond the railroad...
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