Louisville Ry. Co. v. Vessels' Adm'x

• Decision Date: 19 June 1914
• Citation: 167 S.W. 924,159 Ky. 664
• Parties: LOUISVILLE RY. CO. v. VESSELS' ADM'X.
• Court: Kentucky Court of Appeals

167 S.W. 924

159 Ky. 664

LOUISVILLE RY. CO. v. VESSELS' ADM'X.

Court of Appeals of Kentucky.

June 19, 1914

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

Action by Charles A. Vessels' administratrix against the Louisville Railway Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Fairleigh Straus & Fairleigh, H. B. Lee, and Huston Quin, all of Louisville, for appellant.

Edwards Ogden & Peak, of Louisville, for appellee.

CLAY C.

On January 25, 1913, Charles A. Vessels was struck and killed by a car owned and operated by the Louisville Railway Company. His administratrix, Susie Vessels, brought this action to recover damages for his death. From a verdict and judgment in her favor for $2,500, the railway company appeals.

The accident occurred under the following circumstances: Decedent was a driver of a milk wagon. He had driven his horse and wagon to a point on the west side of Preston street just north of its intersection with Brandeis street, for the purpose of delivering milk to a customer by the name of Nussbaum, who conducted a grocery and saloon on the northwest corner of Preston and Brandeis streets. At that time the horse was facing south. Decedent lived in the opposite direction. After remaining in the grocery a short time, he returned to the wagon, and, jumping in, began to turn his horse north towards his home. At that time a Preston street car was proceeding south on the western track. When the horse had practically turned around and headed in the other direction, the car struck the back of the wagon. Decedent was thrown into the street and run over by the car. The accident occurred about 7 o'clock a. m., and all the witnesses agree that it was a dark and foggy morning.

Mr. Nussbaum testified that decedent drove slowly. The gong on the car was not sounded, and the car was going "mighty fast." After the car struck the wagon, it ran less than 30 or 40 feet. N. F. Patton stated that the car was going "pretty fast." Did not hear the gong sounded. When he got to the corner, he saw the horse and wagon standing perfectly still over the car track. At that time the street car was about 40 feet distant. After the car struck the wagon, the rear end stopped near Nussbaum's grocery, but a little further away. John C. Straub, a deputy sheriff, testified that the rear end of the car was about 20 feet beyond Nussbaum's. The horse was standing opposite the car. Mrs. Nussbaum testified that decedent left the store and got right into the wagon. He turned slowly around. His horse was walking. Did not hear the gong sounded. The car was going "awful fast." Her husband called to decedent, but decedent paid no attention to him. Decedent seemed to be in a hurry. He was standing in the wagon. The car ran about 30 feet.

For the defendant the motorman testified that it was a dark and foggy morning, and he rang the bell continuously as the car went out Preston street, and rang it just before the accident. When he saw decedent's wagon it was standing by the curb. The horse was facing south. It was only 15 feet away when the wagon turned across the track. He immediately reversed the car, and did all in his power to stop it. From the time the horse began to cross the track his car went only 22 or 25 feet. After the car struck the wagon it went about 8 feet. The car was going about 5 miles an hour. Did not see decedent look up when the gong was sounded. Was a few minutes behind time. The whole thing happened in a very short time. After the gong sounded it was too late for decedent to get out of the way. Prior to that time, however, witness had been sounding the gong.

1. The first error relied on is the refusal of the court to grant a continuance on account of the absence of J. F. Hudson, the conductor in charge of the car at the time of the accident or to permit the affidavit for continuance to be read as the deposition of the absent witness. The affidavit was made by defendant's general superintendent. It sets out the facts to which Hudson, if present, would testify. Of the relevancy and materiality of these facts there can be no question. The only question is: Does the affidavit show due diligence? It appears from the affidavit that Hudson was in the defendant's employ at the time of the accident. A subp na for Hudson was placed in the hands of the sheriff five days before the case was set for trial. At that time the last known address of the witness in Jefferson county was given to the sheriff. The subp na was returned "not found." The affidavit further shows that since the subp na was returned affiant had been notified that Hudson was in Cincinnati, and affiant did not ascertain that the witness was not in Louisville until the subp na was returned. It was then too late to take his deposition. Exactly on what ground the continuance was refused does not appear. It is claimed, however, that the action of the trial court was based on the fact that the subp na did not contain the address of the witness. If so, that ground was sufficient, in view of the fact that the affidavit states that the last known address of the witness was furnished to the sheriff. The Code does not require the address of the witness to be stated in the subp na. Doubtless in a large city like Louisville, where it is impossible for the sheriff and his deputies to know the names and addresses of any large portion of its inhabitants, a rule requiring that the address of the witness be furnished to the sheriff is not unreasonable. The purpose of requiring the address of the...