Louisville & N.R. Co. v. Dick

• Decision Date: 25 February 1904
• Citation: 78 S.W. 914
• Parties: LOUISVILLE & N. R. CO. v. DICK.
• Court: Kentucky Court of Appeals

78 S.W. 914

LOUISVILLE & N. R. CO. v. DICK.

Court of Appeals of Kentucky.

February 25, 1904

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

"Not to be officially reported."

Action by Sophia Dick against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Helm Bruce & Helm and Benjamin D. Warfield, for appellant.

Bennett H. Young, Dayton T. Mitchell, and J. L. Dorsey, for appellee.

NUNN J.

This is the second time this case has been in this court. The decision of the first appeal will be found in 64 S.W. 725.

In the month of April, 1898, appellee was walking east on Broadway street, in the city of Louisville, and, when crossing appellant's track where it intersects Broadway, she was struck by one of appellant's north-bound trains, and suffered such injury as resulted in an amputation of her foot. Appellant has two tracks, about six feet apart, running north and south, crossing Broadway; the railroad coming out of Brent street, which intersects Broadway at this point. The south-bound train runs on the western, and the north-bound train (the one that injured appellee) on the eastern, track. There were gates or poles on each side of the track across Broadway street, used by appellant to warn persons of the approach of trains. When the train is expected to approach these poles were let down to keep people from crossing, and when the train had passed, and the danger was over, these poles were raised. The appellee, in her pleadings, alleged in substance, that appellant's agent in charge of these safety gates was incompetent, negligent, and careless in the handling and management of them, and when she arrived at the crossing she found the gates or poles up, and did not know that a train was near, and that, by reason of the fact that the gates were up, she had the right to assume that it was safe to cross the appellant's track, and started across and immediately the appellant's agent lowered the gates or poles, and thus hemmed her in and prevented her escape, and that the board crossing, prepared by appellant, whereon pedestrians were expected to cross the tracks, was in a defective, unsafe, and dangerous condition, which fact was known by appellant, and by reason thereof, together with the negligent and improper management of the gates at the crossing, she was thrown or caused to fall down, and, while down and unable to escape, appellant's agents in charge of a train ran the train at a reckless, rapid, and dangerous rate of speed, and ran it in such a careless, negligent, and reckless manner as to run it upon appellee, and so mangled and injured one of her feet that it was necessary to amputate it, and her foot was amputated near the ankle. The answer was a traverse of these allegations, and a plea of contributory negligence, and also was added the following: "Denies that by any negligence or carelessness whatever on its part, or that of its agents or servants, or any or either of them," appellee was caused to suffer, or was damaged in any sum. The contributory negligence was denied by appellee. A trial was had, which resulted in a verdict and judgment for appellee in the sum of $5,000, from which the appellant has appealed.

There were many grounds assigned for a new trial, but counsel for appellant only assigns three reasons why this court should reverse the judgment: (1) That there was not sufficient evidence to sustain it; (2) that the court, by its instructions Nos. 3, 4, and 5, submitted to the jury issues not raised by the pleadings; (3) that the court gave erroneous instructions on contributory negligence and the measure of damages.

With reference to the matter of insufficient evidence to sustain the verdict and judgment, it is sufficient to say that the evidence on all the questions at issue was very...