Louisville Ry. Co. v. Breeden

• Decision Date: 21 December 1934
• Citation: 257 Ky. 95,77 S.W.2d 368
• Parties: LOUISVILLE RY. CO. v. BREEDEN.
• Court: Kentucky Court of Appeals

77 S.W.2d 368

257 Ky. 95

LOUISVILLE RY. CO. v. BREEDEN.

Court of Appeals of Kentucky

December 21, 1934

Appeal from Circuit Court, Jefferson County.

Action by Mollie M. Breeden against the Louisville Railway Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Lee &amp Krieger, of Louisville, for appellant.

Lukins & Jones, of Louisville, for appellee.

RICHARDSON Justice.

About 7:30 p. m., May 13, 1933, Mollie M. Breeden, a woman 71 years of age, while walking across Twenty-Eighth street in an eastwardly direction, near where it intersects with Dumesnil street, was struck and injured by a street car going northwardly on Twenty-Eighth street. The car stopped within a few feet after striking her. When she was rescued by bystanders, she was under the front of the car about 3 or 4 feet north of the crossing used by pedestrians. She was carried to the office of a physician, "suffering with a concussion and contusion of the brain"; "had cuts and bruises all over her body; that is, on her arms and limbs"; "her right arm and elbow" "lacerations on the right side of her head, about two or three inches in length"; and she was not "at herself completely." A physician attended her for two or three weeks, sometimes twice a day; "she developed a contusion of the brain"; "she had a hemorrhage into her brain, developed after the injury, which resulted in a loss of function or movement of her left leg"; "she was rather shocked in the brain and the concussion in the brain produced this loss of function and loss of motion." "Later she was carried to the infirmary and the X-ray revealed no fracture at all, but that the lick on her head produced this cerebral hemorrhage--a rupture of the blood vessel which produced haematoma or clot on the brain." It was the conclusion of the physicians that she probably had a basal fracture, or a fracture at the base of the skull. From her injury to the time of the trial, her right leg became two and a half or three inches larger than the left, which was caused by "an inflammatory condition of the muscles." The consentient opinion of the physicians was that her injuries were permanent.

She filed this action to recover of the Louisville Railway Company compensation for the mental and physical pain endured and the permanent bodily injuries sustained as the proximate result of its negligence in the operation of its street car which struck and knocked her down. Its defenses are a denial and contributory negligence. On the completion of the issues under the instructions of the court, the jury returned a verdict in her favor of $6,000.

The railway company is here complaining of the insufficiency of the evidence showing a failure of any duty on the part of the motorman; of the instructions of the court; of the court's refusal to give offered instructions; and urgently insists she was guilty of such contributory negligence that she should not be permitted to recover.

Immediately before she was injured, she got off of a south-bound Walnut and Twenty-Eighth street car at Dumesnil, walked over to the sidewalk on the west side of Twenty-Eighth street and waited until the southbound car left the scene of the accident; then proceeded to attempt to cross from the west side of Twenty-Eighth, at or near the north side of Dumesnil, to the east side of Twenty-Eighth. While so doing, she was struck by the north-bound Walnut and Twenty-Eighth street car. As she left the curb, she looked both ways and observed no vehicular traffic moving; she started across the street, and, when near about the middle of it, again she looked and saw no traffic moving toward her; she continued across the street, and had gotten within 3 or 4 feet of the east curb line of Twenty-Eighth street when the car struck her. It came north on Twenty-Eighth street, and stopped at the usual place to let off and take on passengers. One or two passengers left, and two boarded, it. Twenty-Eighth street where it intersects with Dumesnil makes an offset according to the map presented of about 23.4 feet. There were buildings on the four corners at this intersection. The offset in Twenty-Eighth street naturally prevents pedestrians crossing Twenty-Eighth street from seeing a great distance beyond the curve on Twenty-Eighth. This curve further interrupts the vision of the pedestrians, according to where they may be while crossing Twenty-Eighth street, either north or south of Dumesnil.

According to the testimony of the chief witness of Breeden, the motorman in charge of the street car was engaged in receiving and changing 50 cents, for the purpose of taking out of it the witness' fare from the time the street car was set in motion before it entered Dumesnil street as well as during the time it was crossing it, up to the moment the car struck her. The testimony of this witness was strongly and unequivocally contradicted by the motorman and one passenger. Both Dumesnil street and Twenty-Eighth street are 36 feet wide from curb to curb. The sidewalks thereon are 11 feet or more in width. The witnesses, except the motorman, seemingly agree that Breeden was crossing Twenty-Eighth street at the regular and usual point of travel set apart for pedestrians. The motorman claims that she entered Twenty-Eighth street "something like a car length" "north of Dumesnil." It is apparent that, if she was this distance from the crossing used by pedestrians, the offset of South street on the south side of Dumesnil, on account of the building on that corner, completely prevented Breeden from seeing the street car, even if she looked for it, until it was approaching near the north side of Dumesnil. The witnesses of Breeden all claim that no signal or warning was given by the street car before or at the time of crossing Dumesnil or after it crossed it and before it struck Breeden, and one witness claims the motorman was engaged in making change and was giving no attention to the pedestrians in front, nor to the operation, of the car. The motorman claims that he was keeping a lookout, but did not see her before he crossed Dumesnil, or until he had practically crossed Dumesnil. At the time he first observed her, "the end of the car was plumb across Dumesnil, headed North on 28th and at that time she was starting off of the curb, was right by the curb and started in front of the street car and traveled West across 28th Street." The testimony of the motorman that he did not see her as above stated corroborates the testimony of the witnesses of Breeden that, while the street car was crossing Dumesnil, the motorman was engaged in making change and giving no attention to the movements of the street car. It is not unfair to say that the motorman, without placing Breeden a car length from the crossing where the car struck her, would have no excusable or plausible explanation of his failure to see her on the crossing before the car struck her. The stopping of the street car and the removal from thereunder of Breeden by bystanders 3 or 4 feet north of the crossing used by pedestrians contradicts the testimony of the motorman, wherein he claims she was a car length from the crossing when she was knocked down by the street car. The motorman admitted that Breeden was 30 or 40 feet in front of the street car when he first saw her, and claims he immediately applied the brake and rang the gong; that the street car was traveling at the rate of about 5 or 6 miles an hour while crossing Dumesnil. If it were traveling at 6 miles an hour, it covered 8 8/10 feet a second.

This résumé of the evidence is sufficiently convincing to show that the evidence was conflicting, making an issue of fact to be determined by the jury, and therefore the court properly overruled the motion for a directed verdict.

Breeden was asked and answered thus:

"Q. After you got off of that street car, that car started up and went on around, didn't it? It was not there when the accident happened at all? A. No Sir. The one I got off?

Q. Yes? A. Oh, no, it was gone.

Q. After you got off of that street car, as you started to cross 28th Street, did you look to see whether any street car was coming from the opposite direction? A. I looked before I left the sidewalk, and when I got middleways of the street, I looked both ways again. I have always been careful, anyway.

Q. You did look as you started to cross the street? A. Yes sir.

Q. And you did not see this street car? A. No Sir.

Q. Was there any traffic moving at all there? A. Not a thing--not a thing.

Q. Now, then, you continued on across 28th Street? A. I guess it was 28th Street.

Q. To the other side of that street? A. Yes Sir.

Q. Then when you got into the middle of 28th Street, that is when you looked again? A. Yes Sir.

Q. Looked both directions, did you? A. Looked both directions.

Q. Did you see any street car then coming from the opposite direction? A. No, sir; I sure would not go on over and let it hit me, if I would have seen it.

Q. You never did see the street car then until after the accident happened? A. I was struck. I did not know what struck me.

Q. You did not know what struck you? A. No Sir."

The railway company contends that, though the evidence as a whole was sufficient to establish negligence on the part of the motorman, her quoted testimony abundantly establishes such contributory negligence as to entitle it to a peremptory instruction.

In support of its insistence for a peremptory instruction, it cites to us ...