Mayhew v. Ohio Valley Electric Ry. Co.

• Decision Date: 25 May 1923
• Citation: 254 S.W. 202,200 Ky. 105
• Parties: MAYHEW v. OHIO VALLEY ELECTRIC RY. CO.
• Court: Kentucky Court of Appeals

254 S.W. 202

200 Ky. 105

MAYHEW v. OHIO VALLEY ELECTRIC RY. CO.

Court of Appeals of Kentucky.

May 25, 1923

Rehearing Denied Sept. 21, 1923.

Appeal from Circuit Court, Boyd County.

Action by J. T. Mayhew against the Ohio Valley Electric Railway Company. Judgment for defendant on directed verdict, and plaintiff appeals. Reversed.

B. S Wilson, of Ashland, for appellant.

Martin & Smith, of Catlettsburg, for appellee.

THOMAS J.

Appellee and defendant below, Ohio Valley Electric Railway Company owns and operates a street railway system in the city of Ashland, Ky. Appellant and plaintiff below, J. R. Mayhew, was a passenger on one of its cars on November 23, 1920, and his destination was a place on the line of defendant located on Winchester avenue at a stopping point known as Rice Station. There was no depot or platform at that point, but it was a usual stopping place for the reception and discharge of passengers. The railway track was located off of the improved portion of the traveled street, and between the track and the curbing of the street next to it there was a space of some three or four feet in width, and at that point it was covered with cinders. That territory was annexed to the city four or five years prior to the happening of the accident for which plaintiff sues, and before then the traveled road, which is now a street in the city, was improved by Boyd county; and while that improvement was going on the contractors, as it seems to be conceded in the record, drove some stakes at the margins of the improved road along its line, one row of which was in the space above mentioned between defendant's track and the curbing. They projected above the level of the ground some four or five inches, but the record fails to disclose the distance they were apart, though we infer from the argument that there was some considerable space between them. It was between 6 and 7 o'clock p. m. when the car upon which plaintiff was riding stopped at the place for him to alight. The motorman opened the door, which dropped an automatic step upon which plaintiff placed his left foot and from there attempted to step upon the ground with his right foot, and it landed on one of the stakes and caused his body to careen and him to fall upon the ground, resulting in a severely sprained ankle. He filed this action in the Boyd circuit court to recover damages for his injuries, which he alleged in his petition were the proximate result of the negligence of defendant in failing to provide a reasonably safe place for him to alight from its car, and in failing to have the place lighted to enable him to discover the dangerous condition of the place, or the existence of any obstructions that rendered it so. The answer was a denial with a plea of contributory negligence, which was denied by reply, and after the close of plaintiff's evidence, the court sustained defendant's motion for a directed verdict in its favor and dismissed the petition. Plaintiff's motion for a new trial was overruled, and he has appealed.

The testimony shows conclusively, and without contradiction, that the stake upon which plaintiff stepped and others in line with it were located about 18 inches from the curbing of the street and a sufficient distance from the car line to be at the line where a passenger would alight from the automatic step, and that they had become weather-stained, so as to approximate the color of the cindered surface and to make difficult their discovery in the nighttime. It is likewise admitted by plaintiff that he knew in a general way of the existence of the row of stakes along that side of the street, but he had no definite, or specific, knowledge of the exact location of any single one of them, and he had no actual knowledge of the presence of the one at the place where he attempted to alight from the car. Neither the record nor the briefs in the case inform us of the ground upon which the court directed the verdict in favor of defendant, but we infer (and indeed that is the only conceivable one) that it was because plaintiff had a general knowledge of the prior existence of the stakes along that side of the street.

The law recognizes a distinction between the duties of a street railway company, operating its lines upon the streets of a...