Louisville Ry. Co. v. Broaddus' Adm'r

• Decision Date: 26 April 1918
• Citation: 180 Ky. 298,202 S.W. 654
• Parties: LOUISVILLE RY. CO. v. BROADDUS'ADM'R. [a1]
• Court: Kentucky Court of Appeals

202 S.W. 654

180 Ky. 298

LOUISVILLE RY. CO. v. BROADDUS'ADM'R. ^[a1]

Court of Appeals of Kentucky.

April 26, 1918

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

Action by Mortimer Logan Broaddus' Administrator against the Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Alfred Selligman, Straus, Lee & Krieger, and Houston Quin, all of Louisville, for appellant.

Eugene R. Attkisson, Lewis T. Haney, and Barret, Allen & Attkisson all of Louisville, for appellee.

HURT J.

On a morning, about 8 o'clock, Mortimer Logan Broaddus, a lad about six years of age, was run over and killed by a car of the appellant on Second street, between Oak street and Ormsby avenue, in the city of Louisville. This action was instituted by the administrator of the deceased boy to recover the damages suffered by his estate by reason of his death. The basis of the action, as alleged in the petition, was that the car, which was propelled by electric power, was caused and suffered by the negligence and carelessness of the servants and agents of the appellant to run down the decedent and destroy his life. The defense set up by the appellant, in its answer, was a traverse of the material averments of the petition, and contributory negligence on the part of the decedent, which contributed to the cause of his death to such extent; that but for which he would not have been injured. Second street runs north and south. Oak street intersects it toward the north, and Ormsby avenue to the south, of the point where the tragedy occurred. The distance between Oak street and Ormsby avenue is 724 feet, and on both the east and west sides of the street throughout the block it is closely occupied by dwelling houses. The appellant railway company has two tracks running near the center of Second street. The one nearer to the east side of the street is called the north-bound track, and the one nearer to the west side is called the south-bound track. The east rail of the north-bound track is 10 feet and 8 inches from the curbing on the east side of the street. There is a distance of 4 feet and 6 inches between the two tracks, and the tracks are each 5 feet in width, and from the west rail of the south-bound track to the curbing upon the west side of the street is 10 feet and 10 inches. The decedent, in company with his brother, who was two years older, started to school, upon that morning, from their home, which was the nearest house in the block to Orsmby avenue, on the west side of Second street. When they had arrived near the center of the block the decedent crossed the street to the dwelling of Mr. Wellman to secure the company of his small son, while the brother of decedent went to the dwelling of Mr. Wayne, on the west side of the street, to secure the company of a lad at that place, who usually accompanied them to school. The decedent, when he arrived at Wellman's, ascertained that the little boy there would not attend school upon that day, and when he attempted to return across the street, going diagonally across it, with his face toward the southwest, and as he crossed the south-bound track, he was struck by appellant's car, which was proceeding toward the south, and instantly killed.

As stated above, there were no specific acts of negligence alleged as the cause of the death of the boy, but the charge was one of general negligence and the evidence, as to the existence of any negligence, which resulted in the death of the boy, and the inferences to be drawn from the physical facts proven and other circumstances were very contradictory. The theory advanced by the appellee, as to the cause of the death, was that the car was being operated at an unreasonable degree of speed, and that the motorman failed to maintain a proper lookout; that the decedent was attempting to cross the street and did not see nor observe nor have knowledge of the presence of the car, and came upon the track oblivious of the danger at hand; and that the motorman saw the peril in which the lad was, or by the exercise of the duty of reasonable care in keeping a proper lookout should have seen him and the peril in which he was, in time, by the exercise of ordinary care, to have prevented injury to him by giving proper warning or to have stopped the car before it struck the decedent. While the appellant insists that the car was being operated at a reasonable speed and under control, and that a proper lookout was maintained, but that the decedent came suddenly around the rear of a north-bound car, which was passing at the time, and came upon the track about eight feet in front of the south-bound car, and that the motorman did not know of the purpose of the lad to come upon the track, in front of the car, or would attempt to cross the track, until he saw him about eight feet in front of the car; that he immediately gave warning by ringing the gong, cried out to him, applied the brakes, and used every endeavor within his power to stop the car, but that the proximity of the lad to the car was such that he was unable to stop the car until it ran over him; and that the killing was unavoidable, and was not caused by any negligence of the motorman. A trial of the action before the court and a jury resulted in a verdict of the jury for the administrator for the sum of $5,500 in damages, and a judgment of the court in accordance therewith. The appellant's grounds and motion for a new trial having been overruled, it has appealed to this court.

Four grounds are insisted upon by appellant for the reversal of the judgment:

First. The court erred in overruling the motion for a directed verdict in favor of appellant.

Second. The court erred in instructing the jury that it was the duty of the appellant to operate its car at a reasonable rate of speed and to have it under control, and in directing the jury to find a verdict for appellee, if the appellant failed in that duty, if such failure was the cause of the lad's death.

Third. The court erred in giving to the jury instruction No. 3.

Fourth. The error of the court in the admission of incompetent testimony, which was objected to at the time.

(a) As to the first ground for reversal Insisted upon, it is useless to recite the well-known rule that in actions triable by jury, when there is evidence to support both the affirmative and negative of an issue, that it is the province of the jury to weigh the evidence and determine the issue, and that under such circumstances the court should not invade the province of the jury by taking from it the determination of the issue and, where the evidence is contradictory, it is peculiarly the province of the jury to determine the truth as to the issue. While there was evidence, by probably the greater number of witnesses, that the car was moving at the rate of speed usually employed in the areas between the points of intersections with other streets, the most of these witnesses were unable to give any opinion as to how great the speed was or how many miles per hour the car was proceeding. The motorman and conductor testified that the car was moving eight or ten miles per hour, but the motorman also said that it was being operated with a full current of electricity, and while he testified that he attempted, with all the means at hand, to stop the car, when he discovered the decedent in front of it near the north-bound track, and that the car could be and was stopped within 50 feet, the great weight of the evidence was to the effect that it did not stop until it had gone between 140 and 150 feet from the place where it collided with the decedent, from which it could be inferred that the car was not being operated at a reasonable rate of speed or under reasonable control, under the circumstances existing. Certain other witnesses describe the movement of the car as "very fast," and "exceedingly rapid." Hence the only basis for the argument that there was no evidence which conduced to prove that the speed of the car contributed to the death of the deceased is the insistence by appellant that, whether the car was going fast or slow, the death could not have been avoided by the servants of appellant. If, however, the motorman saw the peril in which deceased had placed himself, or by the keeping of a proper lookout would have discovered it in time to have given him warning, so that he might have saved himself, or the motorman to have stopped the car, before coming in contact with deceased, but was unable to do so because of the unreasonable speed of the car, the appellant would have been liable for the death, and there was evidence and inferences from facts proven...