Louisville Ry. Co. v. Louisville Taxicab & Transfer Co.

• Decision Date: 23 January 1934
• Citation: 256 Ky. 827,77 S.W.2d 36
• Parties: LOUISVILLE RY. CO. v. LOUISVILLE TAXICAB & TRANSFER CO.
• Court: Kentucky Court of Appeals

77 S.W.2d 36

256 Ky. 827

LOUISVILLE RY. CO. v. LOUISVILLE TAXICAB & TRANSFER CO.

Court of Appeals of Kentucky

January 23, 1934

As Modified on Denial of Rehearing December 18, 1934.

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

Action by the Louisville Taxicab & Transfer Company against the Louisville Railway Company, which filed a counterclaim. From the judgment rendered, both parties appeal.

Affirmed.

Peter Lee, Tabb, Krieger & Heyburn, of Louisville, for appellant.

Robert Page and Woodward, Hamilton & Hobson, all of Louisville, for appellee.

CREAL Commissioner.

In April, 1929, a baggage truck belonging to the Louisville Taxicab & Transfer Company, hereinafter referred to as the transfer company or appellee, was left standing on the south side of Walnut street near the baggage entrance to the Seelbach Hotel in Louisville, Ky. The back end of the truck extended so far into the street as to leave insufficient space for the passage of street cars over the east-bound tracks. Shortly after the truck was left so standing, it was struck by a street car of the Louisville Railway Company hereinafter called the railway company or appellant, and was knocked forward, striking and injuring Mrs. Bertha Reno, who had stepped out into the street preparatory to boarding a street car. The railway company entered into a compromise agreement with Mrs. Reno whereby it paid her the sum of $3,500 in settlement of its liability growing out of the accident.

Thereafter she instituted suit against the transfer company seeking damages for the injuries sustained in the accident and recovered judgment for the sum of $10,500, subject to credit by $3,500, the amount paid her by the railway company, which on appeal to this court was affirmed. See Louisville Taxicab & Transfer Company v. Reno, 237 Ky. 452, 35 S.W.2d 902, 904. The transfer company paid this judgment, which, with interest, amounted to $7,473.73, and also $165.05 as costs of the action. It also settled a suit which W. R. Reno, husband of Bertha Reno, had brought for loss of her services due to her injuries by payment of $516 in satisfaction of the claim for damages and the costs of the action.

The transfer company instituted this action against the railway company to recover the sum of $8,138.78 the total amount which it had been required to pay in settlement of the suits of Mr. and Mrs. Reno against it, and alleged that the accident and the loss and damage resulting to it as a consequence of the accident was due solely and entirely to the negligent operation of the street railway company's street car.

In an amended petition, the plaintiff reiterated and amplified the allegations of the original petition, and prayed recovery for the full amount sought therein, but further prayed that, if it should be adjudged that it was not entitled to recover this sum, it recover by way of contribution from defendant one-half of such sum, subject to a credit of $3,500 which defendant had paid to Mrs. Reno under the compromise agreement.

In a subsequent amendment, it prayed that, if it be adjudged that defendant was not indebted to it in the full sum sued for, it be adjudged that it recover of defendant that proportion of such sum which represented the negligence of defendant's motorman in relation to all the negligence operating to bring about the injuries to Mrs. Reno.

The railway company by answer traversed the allegations of the petition, and in a second paragraph set up certain affirmative defenses. The court sustained a demurrer to this, but, since no question is made as to the propriety of the court's ruling on the demurrer, it will be unnecessary to consider this portion of the answer. By amended answer and counterclaim, the railway company alleged that the accident out of which Mrs. Reno's injuries grew was due solely to the negligence of the transfer company; that the compromise under which it paid her $3,500 was reasonable and proper settlement under the circumstances as between the parties thereto, and it asked recovery against plaintiff for that amount, but it further asked that, if it should be adjudged that the accident was not due solely to the negligence of plaintiff, but that defendant also was guilty of some negligence, then in that event that plaintiff be required to contribute to it under the provisions of section 484a, Ky. St., such sum as might appear proper under the proven circumstances of the case.

At the close of all the evidence, the jury, at the direction of the court, returned a verdict in favor of the transfer company for the full amount sued for; however, the court, on hearing and consideration of the railway company's motion for a new trial, remitted $6,386.32 as representing the difference between what the railway would be required to pay under the judgment and the sum it should be required to pay as equal contribution between the parties, and therefore adjudged that plaintiff recover of defendant the sum of $2,439.49, with interest from October 5, 1932. The defendant is prosecuting an appeal, and plaintiff is prosecuting a cross-appeal.

Only a brief statement of facts in evidence will be necessary, since there is an extensive review of the evidence with the attending facts, circumstances, and surrounding conditions in the case of Louisville Taxicab & Transfer Company v. Reno, supra, in which the evidence is in all material details similar to the evidence here.

Bert Jones, the colored driver operating appellee's truck, had left the Kentucky Hotel and proceeded east to the Seelbach for the purpose of taking up baggage for an outgoing train. The street car was going in the same direction. The driver of the truck testified that another truck belonging to appellee was standing on the south side of Walnut street near the baggage entrance to the Seelbach; that he pulled up with the intention of backing his truck to the baggage entrance. His evidence indicates that he looked back and saw the street car approaching and decided that at the rate it was coming it could not stop before it struck his truck. He therefore stopped his motor, jumped out of the truck, and ran over to the baggage entrance. The evidence of the motorman operating the street car is to the effect that he saw the truck as he approached the scene of the accident and thought there was sufficient space to pass in safety, but that he miscalculated the distance, and the street car struck the truck.

Apart from the evidence of the driver of the truck and motorman, only one witness goes into detail as to what occurred immediately before and at the time of the accident. John Gardner, a witness introduced by appellee, testified that he was driving west on Walnut street and was stopped at the intersection of Fourth and Walnut by the traffic light. We take the following excerpt from his direct examination.

"Q. 8. Tell the jury what you saw. A. The light came on at Fourth and Walnut, and I stopped.

Q. 9. Which direction were you going? A. I was going west.

Q. 10. All right; go ahead. A. And the car had left Fifth and Walnut.

Q. 11. What car had already left Fifth and Walnut? A. The car going east.

Q. 12. The street car? A. Yes sir; and it got along there by the Seelbach Hotel and it passed one truck and it struck the other, and there was some ladies standing out there on the edge of the walk and one stepped down, and...