Louisville Ry. Co. v. McCarthy

• Decision Date: 16 October 1908
• Citation: 129 Ky. 814,112 S.W. 925
• Parties: LOUISVILLE RY. CO. v. McCARTHY.
• Court: Kentucky Court of Appeals

112 S.W. 925

129 Ky. 814

LOUISVILLE RY. CO. v. McCARTHY.

Court of Appeals of Kentucky.

October 16, 1908

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

"To be officially reported."

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

Fairleigh Strauss & Fairleigh and Greene & Van Winkle, for appellant.

M. K Yonts, for appellee.

LASSING J.

This is an appeal from a judgment of the Jefferson circuit court wherein appellee recovered $1,500 damages for personal injuries which she received in a collision with one of appellant's cars while she was being driven west on Frankfort avenue in a carriage. She charged that the collision and consequent injury to her was due to the gross negligence of the agents and servants of appellant in charge of the car. The answer, in addition to traversing the allegations of the petition, pleaded contributory negligence. A reply traversed the affirmative matter of the answer, and upon the issues thus joined the case was tried, and the verdict appealed from rendered. Several reasons were urged in the motion for a new trial why the verdict should be set aside and a new trial awarded, but upon this appeal but one ground for reversal is urged, to wit, the failure of the court to properly instruct the jury on the subject of imputed negligence.

The appellant asked the court to give the following instructions: "(A) The court instructs the jury that, although they may believe from the evidence that the motorman in charge of the car that collided with the surrey in which plaintiff was riding was negligent in the management and operation of his car at the time of said collision, yet if they further believe from the evidence that the person driving said surrey was also negligent at said time and place, and but for his negligence, contributing or helping to bring about said accident, the same would not have occurred, then the law is for the defendant, and the jury should so find. (B) If the jury believe from the evidence that the driver of the surrey in which plaintiff was riding at the time of the collision complained of herein drove the same across the track on which defendant's car was running so close to the front end of said car that he rendered it impossible for the motorman in the exercise of ordinary care to stop his car in time to prevent a collision with said surrey, then the law is for the defendant, and the jury should so find." This the court refused to do, and gave instead instruction No. 5, which is as follows: "In this case, gentlemen, the plaintiff is responsible only for such negligence, if any there was, that she was guilty of. She is not liable for any contributory negligence, if any there was, that may have been committed by her husband, who was the driver of the surrey. I will say, further, to you that if you believe from the evidence that the motorman discharged all of the duties of which I have spoken to you--that is, that he did keep a lookout ahead, did have his car under reasonable control, did sound the customary signals, and did exercise ordinary care to prevent injury to the vehicle in which the plaintiff was riding--but that the vehicle suddenly appeared upon the track that the street car was occupying, so close to the street car that the motorman could not avoid the accident by the exercise of ordinary care, then the law is for the defendant, and you should so find." And it is the action of the court in refusing to give instructions A and B, asked for, and in giving instruction No. 5, of which appellant now complains.

The evidence shows that appellee and her husband and two others were driving west on Frankfort avenue on Sunday afternoon and a car of appellant company was going in the same direction, and while the carriage in which appellee was riding was upon the west-bound track of appellant its car ran into the vehicle from behind, overturned it, and threw them out, and appellee sustained the injury complained of. It is the contention of appellant that the horse which was being driven by appellee's husband became frightened at a passing railroad train, and swerved suddenly upon the track a short distance before the car, and when the car was so close upon it that the accident and collision was unavoidable. It is conceded for appellant that appellee did nothing whatever, and was a passive occupant of the carriage, and unless the negligence of her husband (if any there was), as driver, can be imputed to her, then she is without fault, and must recover in any event, if those in charge of the car were shown to have been...