Louisville Ry. Co. v. Mitchell

• Decision Date: 05 May 1910
• Citation: 138 Ky. 190,127 S.W. 770
• Parties: LOUISVILLE RY. CO. v. MITCHELL.
• Court: Kentucky Court of Appeals

127 S.W. 770

138 Ky. 190

LOUISVILLE RY. CO. v. MITCHELL.

Court of Appeals of Kentucky.

May 5, 1910

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

"To be officially reported."

Action by Annie Mitchell against the Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fairleigh Straus & Fairleigh and Howard B. Lee, for appellant.

Edwards Ogden & Peak, for appellee.

HOBSON J.

Mrs Annie B. Mitchell was a passenger on one of the south-bound cars on Second street. There are two tracks on Second street. The north-bound cars run on the east track, and the south-bound cars on the west track. Persons on the south-bound cars have to get off on the west side, and, if they live east of Second street, they have to go across both tracks to get to the sidewalk. Mrs. Mitchell got off at Ormsby and walked across behind her car, which was still standing there. Just as she was leaving the second track, she was struck by a north-bound car, which came up while she was behind the car she had gotten off. She sustained serious injuries from the collision, to recover for which she brought this suit, and in the circuit court there was a judgment in her favor for $2,000. The defendant appeals.

The first point made on the appeal is that the judge before whom the case was tried erred in refusing to vacate the bench under the affidavit filed by the defendant. The facts about the matter are these: When the case was called, the defendant filed an affidavit for a continuance on the ground of the absence of three witnesses. Before the motion for the continuance was disposed of by the court, one of the witnesses appeared, and thereupon the plaintiff consented that the affidavit might be read as the deposition of the other two witnesses. The defendant then announced ready, and a panel of 18 was drawn from which to select the jury. The plaintiff and the defendant each struck three from the list. At this time the defendant moved the court for a continuance of the case on the ground that it was surprised in that the witness who had appeared would not state what it was alleged in the affidavit she would state. It was stated in the affidavit that she saw the plaintiff just before she was hurt, and the witness would state that the plaintiff was not the person she saw. When this question was made, the court passed the case until the next day. On the next morning when the court met, the defendant filed an affidavit that the judge would not give it a fair trial. The matters relied on in the affidavit all existed, and were known the day before. A motion of this sort must be made at the threshold, and not after other motions are made and disposed of K. C. R. R. Co. v. Kenney, 82 Ky. 154; German Ins. Co. v. Landram, 88 Ky. 433, 11 S.W. 367.

592, 10 Ky. Law Rep. 1039; Vance v. Field, 89 Ky. 178, 12 S.W. 190, 11 Ky. Law Rep. 388; Hargis v. Com., 123 S.W. 239.

The next objection made is that the court should have instructed the jury peremptorily to find for the defendant. The plaintiff's statement as to how the injury occurred is as follows: "I got off the car, and went around the rear end of the car to go to my home, and, when I got around the end of the car, I listened and there was no signal. I heard none, and I am confident there was none, so I thought I was safe, and I started across, and the car got me on the track. I was very near off, and it caught my clothing. I hardly know how it was done, but it was bound to have caught my clothing, for I seemed to be whirled in the air, and came down on this shoulder and arm and side of the head. Q. Where were you when you saw the approach of the car? A. I was on the track. Q. Which way was the car going? A. North. Q. Then after you saw the car, and saw it approaching, what did you do? A. I tried to get out of the way of it, of course. Q. Did you run? A. I didn't run. I just walked faster, and made an effort to get off. Q. How was the car coming with reference to speed, was it coming fast or slow? A. My impression was that it was fast. Of course, I would have gotten across if it had not been. Q. Had you at any time heard the signal of this car, any going or any bell at all? A. Not until just before I was struck. Q. About where were you when you thought you were being tossed into the air? A. Well, I was just about the edge of the track. There was one of my feet had a mark on the shoe, on the heel. Q. Could you tell me just how far you were thrown. A. Well, I don't know that I can. I don't know whether I can tell how far I was thrown, because I was so dazed at the time. Q. On what part of your body did you fall? A. On my arm and shoulder. Q. Left side? A. Yes, sir." On cross-examination this evidence was given: "Q. As you came back of the car from which you got off, and before you attempted to cross the other track, knowing the track was there, as you say you did, did you give a glance of the eye to see whether the other car was coming? A. Naturally I would. I am not so positive. I did not hear the signal, so I thought I was safe. Q. I am not asking you what you thought or what you might have done; but I am asking you, did you do it? Did you as you passed from behind one car, whether that car was standing still or moving, and before you entered the other track--did you turn your head or even give a glance to see whether or not a car was coming on the track you were about to cross? A. That may appear curious, but I didn't see it until I got on the track. *** Q. Where were you in the street or with reference to the north-bound track when you say you heard the scream? A. Where was I on the track? Q. Yes. A. I was very near across. Q. Over on to the north side--I mean over to the east side? A. Yes, sir."

On practically this state of facts a recovery was sustained in Louisville Railway Co. v. Hudgins, 124 Ky. 79, 98 S.W. 275, 30 Ky. Law Rep. 316, 7 L.R.A. (N. S.) 152, and under the rule laid down in that case, the court did not err in refusing to give the jury a peremptory instruction to find for the defendant. The railway company proved by its witnesses that the north-bound car was going very slow as it passed the south-bound car, that the gong was ringing, and that the car was under control. According to its evidence the accident was due to the fact that Mrs. Mitchell came around the standing car and upon the other track so close to the north-bound car that the injury to her could not have been avoided by ordinary care on the part of those in charge of that car. But this question was aptly submitted to the jury by the instructions of the court, and we cannot say that the verdict of the jury is not warranted by the evidence. While the numerical weight of the evidence is with the railway company, there are facts in the case warranting the conclusion which the jury reached. The conductor of the south-bound car says that, when the motorman on the north-bound car passed him about the middle of his car, he was kicking the gong, indicating an alarm that somebody was on the track in front. Mrs. Mitchell was behind her car, and if she came in view a half a car's length from the motorman, and he had his car under control, he should...