Louisville Ry. Co. v. Rice
| Decision Date | 15 May 1923 |
| Citation | 199 Ky. 196,250 S.W. 863 |
| Parties | LOUISVILLE RY. CO. v. RICE. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.
Action by Earl A. Rice against the Louisville Railway Company and another. Judgment for plaintiff, and defendant Railway Company appeals. Reversed and remanded.
John G Heyburn, Peter, Lee, Tabb & Krieger, and Alfred Selligman all of Louisville, for appellant.
A. J Bizot, of Louisville, for appellee.
Earl Rice was one of a party of laborers returning from South Louisville to their homes in the west end of the city. They rode in one of appellant's street cars to Oak street, with the intention of transferring to a West Oak street car. Several cars passed, but all were so crowded they could not enter any of them. Finally Rice and two companions climbed on the rear of a car, and stood upon the outer rim behind the railing which surrounded the rear vestibule. The platform was crowded, and they handed their transfers to the conductor over the shoulders of intervening passengers. The car went westward, only one or two stops being made until it reached Sixth street. As they approached it the usual stop was made at the eastern intersection, but no one got off, but on signal the car was stopped again just beyond the western intersection of Sixth and Oak streets, and a lady alighted. From Second street a large sand truck drove just behind the car, and the defendant Rosenberg followed it in a Ford sedan. At the intersection of Sixth street the truck turned southward, but the Ford sedan pursued its course, crossing Sixth street at a rate of speed estimated at from 5 to 15 miles an hour, and collided with the car at the western intersection, striking Rice, and seriously injuring him. The conductor did not see Rosenberg or know of his approach until after the accident. Alleging joint negligence, Rice sued both the railway company and Rosenberg, recovering separate judgments of $1,250 and $2,500, respectively, and the railway company appeals.
It insists that it was entitled to a peremptory instruction to find for it. While slight, there is a scintilla of evidence tending to show that the conductor knew that Rice was riding outside the railing, and accepted his transfer with such knowledge. If true, this would constitute him a passenger, and impose upon appellant the duty to exercise the highest degree of care to transport him safely. S. C. & C. S. Ry. Co. v. Hardy, 152 Ky. 374, 153 S.W. 474, 44 L. R. A. (N. S.) 32; S. C. & C. S. Ry. Co. v. Trowbridge, 163 Ky. 84, 173 S.W. 371.
The usual place for stopping cars going west is on the east side of the intersection. It is not claimed the car went rapidly over Sixth street, and there was nothing unusual in the manner of stopping it. It is further clear that it is customary and lawful to stop a car at any place (at least between intersections) that necessity or convenience may require, and that the injury was caused, primarily, by the negligence of the driver of the machine. The railway company had no control over him, and to hold it liable for his negligent acts, unless it in some way concurred therein would be to constitute it an insurer...
To continue reading
Request your trial