Louisville Ry. Co. v. Kennedy

• Decision Date: 05 February 1915
• Citation: 172 S.W. 970,162 Ky. 560
• Parties: LOUISVILLE RY. CO. v. KENNEDY.
• Court: Kentucky Court of Appeals

172 S.W. 970

162 Ky. 560

LOUISVILLE RY. CO. v. KENNEDY.

Court of Appeals of Kentucky.

February 5, 1915

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

Action by Blanche Kennedy against the Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank P. Straus, Howard B. Lee, and Alfred Selligman, all of Louisville, for appellant.

O'Doherty & Yonts, of Louisville, for appellee.

CLAY C.

This is a personal injury case, in which plaintiff, Blanche Kennedy recovered of the defendant, Louisville Railway Company, a judgment for $800. The railway company appeals.

Refusal to direct a verdict in favor of the defendant, and error in one of the instructions, are relied on as grounds for a reversal.

The facts are these: On July 8, 1913, plaintiff was a passenger on a west-bound Bardstown Road car, which was moving on the north side of Jefferson street along one of two parallel tracks. When the car reached the northeast corner of Jefferson and Third streets, it stopped for the purpose of permitting passengers to alight. Plaintiff got off at this point, and, passing around the rear end of the car, started to cross the parallel track for the purpose of reaching the opposite side of the street. When she reached the parallel track, she was struck and injured by a Fourth street car then being operated on the Second street line. There is substantial evidence to the effect that the Fourth street car was being operated at a high rate of speed, and that no warning of its approach was given.

It is insisted that, because plaintiff did not look at the approaching Fourth street car before she stepped on the parallel track, she was guilty of contributory negligence as a matter of law. It may be conceded that, while a different rule formerly prevailed, a number of the courts now make no distinction between steam railroads and street railroads with respect to the obligation of the pedestrian to look for an approaching car, because they say the danger from stepping on street car tracks where the cars are run by electricity and at a rapid rate and with greater frequency, is quite as great as the danger from stepping on steam railroad tracks, where the cars do not run so often; and common prudence requires that the care on the part of the pedestrian shall be increased in proportion to the dangers to be apprehended; and they therefore hold that a person who, upon alighting from a street car, passes around the rear end of the car without looking for a car approaching from the opposite direction on the parallel track, and is struck by such car and killed or injured, is guilty of contributory negligence which will defeat a recovery for the injury. Creamer v. West End St R. Co., 156 Mass. 320, 31 N.E. 391, 16 L.R.A. 490, 32 Am.St.Rep. 456; Weber v. Kansas City Cable R. Co., 100 Mo. 194, 12 S.W. 804, 13 S.W. 587, 7 L.R.A. 819, 18 Am.St.Rep. 541; Hornstein v. United R. Co., 195 Mo 440, 92 S.W. 884, 4 L.R.A. (N. S.) 729, and note, 113 Am.St.Rep. 693, 6 Ann.Cas. 699, and note; Eagen v. Jersey City, etc., R. Co., 74 N. J. Law, 699, 67 A. 24, 11 L.R.A. (N. S.) 1058, 12 Ann.Cas. 911, and note; Yersack v. Lackawanna, etc., R. Co., 221 Pa.

493, 70 A. 837, 18 L.R.A. (N. S.) 519, 128 Am.St.Rep. 746. In other jurisdictions, however, a different rule prevails, and it is held that a failure to look does not bar a recovery; but the question of contributory negligence is for the jury. Chicago City R. Co. v. Robinson, 127 Ill. 9, 18 N.E 772, 4 L.R.A. 126, 11 Am.St.Rep. 87; Smith v. Union Trunk Line, 18 Wash. 351, 51 P. 400, 45 L.R.A. 169; Cincinnati Street R. Co. v. Snell, 54 Ohio St. 197, 43 N.E. 207, 32 L.R.A. 276; Birmingham R., Light & P. Co. v. Landrum, 153 Ala. 192, 45 So. 198, 127 Am.St.Rep. 25; Bremer v. St. Paul R. Co., 107 Minn. 326, 120 N.W. 382, 21 L.R.A. (N. S.) 887. The same rule prevails in this state. Louisville Ry. Co. v. Hudgins, 124 Ky. 79, 98 S.W. 275, 30 Ky. Law Rep. 316, 7 L.R.A. (N. S.) 152; Creamer v. Louisville R. Co., 142 Ky. 340, 134 S.W. 193; Louisville R. Co. v. Mitchell, 138 Ky. 190, 127 S.W. 770. Indeed, with the single exception of a person who was stone deaf and therefore unable to discover the approach of the train except by the use of his eyes, we have never held, even in the case of steam railroads, that a failure to look would constitute contributory negligence. C., N. O. & T. P. R. Co. v. Winningham's Adm'r, 156 Ky. 434, 161 S.W. 506; Smith's Adm'r v. C., N. O. & T. P. R. Co., 146 Ky. 568, 142 S.W. 1047, 44 L.R.A. (N. S.) 193. There is therefore no necessity on our part to change the rule with respect to street railways, in order to keep pace with the progress of the time, as was the case with the Supreme Court of Missouri. Under our rule, the pedestrian is required to exercise that degree of care that an ordinarily prudent person would exercise, under like or similar circumstances, to learn of the approach of the car and keep out of its way. The degree of care will necessarily vary with the circumstances of each particular case. It is therefore our rule to let the jury...