Melville v. Rollwage

• Decision Date: 20 October 1916
• Parties: MELVILLE v. ROLLWAGE.
• Court: Kentucky Court of Appeals

188 S.W. 638

171 Ky. 607

MELVILLE v. ROLLWAGE.

Court of Appeals of Kentucky.

October 20, 1916

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

Action by Minnie Rollwage against Frank Melville. Judgment for plaintiff, and defendant appeals. Affirmed.

Hubbard & Hubbard, of Louisville, for appellant.

Edwards Ogden & Peak, Williams & Walker, and H. O. Williams, all of Louisville, for appellee.

SETTLE J.

About 5 o'clock p. m., October 30, 1914, the appellee, Minnie Rollwage, was knocked down and injured at the crossing of Fourth and Walnut streets in the city of Louisville by an automobile owned and operated by the appellant, Frank Melville. Shortly thereafter she brought this action to recover of him damages for the injuries sustained from the collision in question, alleging in the petition that they were caused by appellant's negligent operation of the machine. The latter answered, traversing the averments of the petition and alleging contributory negligence on the part of appellee. The trial resulted in a verdict and judgment in favor of appellee for $1,250. Appellant complains of the judgment, hence this appeal.

It appears from the evidence that appellee, a young lady 25 years of age, was going south on the west side of Fourth street, in company with her sister and another young lady and that in crossing Walnut street the appellant, who was going west on Walnut street in his automobile, ran into the appellee, knocked her down, ran one wheel of the machine over her body, and knocked the two young ladies with her down as well. Fourth street runs north and south, and Walnut street east and west, the Seelbach hotel being the southwest corner, Selman's mercantile building on the northwest corner, the Stewart Dry Goods Company's building on the southeast corner, and the United Cigar store on the northeast corner. There are double lines of street car tracks on both Walnut and Fourth streets. Not only is every building in this vicinity devoted to business purposes, but the intersection of the streets at this point is notoriously the most congested and busiest intersection in Louisville. The city maintains at this intersection a policeman or traffic officer, who constantly stands on duty directly in the middle of the street. He uses a whistle, one sound of which indicates that vehicles and persons going east and west, or on Walnut street, shall have the right of way over vehicles and persons moving north and south, or on Fourth street. Two blasts of the whistle indicate that vehicles and persons moving north and south, on Fourth street, shall have the right of way. At the time of the collision in question appellee and her two companions were standing in the space between the two Walnut street car tracks, to which point they proceeded in the attempt to cross Walnut street, but the stop made by them was necessary because an east-bound Walnut street car was standing over the foot crossing immediately in front of them, discharging and taking on passengers. The traffic officer had just given the signal for the car to pass over Fourth street and on east, the conductor had rung the car bell for the car to start, and it was in the act of starting, when appellee and her companions were struck by the automobile, coming from the east and going at a speed of 10 or 12 miles an hour, without slowing up for the Fourth street intersection or giving any warning whatever. After being momentarily halted by the street car appellee's attention was directed to the car, although before she left the pavement in her rear she looked east on Walnut street without seeing appellant, whose automobile was then somewhere on the east or opposite side of Fourth street and not in her view.

The foregoing facts were shown by the testimony of appellee, her two companions, and other witnesses. Among the latter was J. W. Raymond, the traffic officer, whose position between the point of the accident and the approaching automobile enabled him, better than all others, to see what occurred. His description of the accident was as follows:

"Well, sir, about five or ten minutes after five that afternoon there was an East Walnut street car going east, and I blowed one whistle; that signified for traffic to go east and west. Mr. Melville was coming down in his automobile, and this car was going east. The car had started to go up, and Mr. Melville came down with his automobile and these young ladies there were standing on the south side of the car by the street car.

The Court: South side or north side of the street car?

The Witness: On the north side. A. (continued) I hollered to him to stop; he never blowed his whistle or anything, his horn or anything, and I hollered for him to stop. Just as he was about over here to that table from the women, he hollered, 'Look out.' As he hollered, 'Look out!' he hit them and knocked all three of them down. Q. With reference to the speed of his automobile, how was he traveling? A. He was traveling, I judge it to be, 10 or 12 miles an hour. Q. At that time, state please whether there were many or few people on that intersection. A. There were quite a few people in the intersection; yes, sir. Q. Up until the time he hollered 'Look out!' had you heard any horn or warning given by the defendant? A. None whatever. * * * Q. What were these young ladies doing at that time, when he hollered, 'Look out'? A. They were waiting for this car to pass so they could cross the intersection."

John Walsburger, another police officer, was also near and witnessed the accident. His description of the occurrence was as follows:

"Q. Did you notice whether they were walking or standing still, or what they were doing when the automobile approached them? A. They had to stand still; the car was going east. Q. The street car? A. Yes, sir. Q. Did you hear a horn or any warning given of the approach of this automobile? A. No, sir; I did not; only the hollering. Q. How far was the automobile away from these young ladies when he hollered? A. Well, about five foot. Q. Can you tell the jury about how fast the automobile was running at that time? A. It was going right between 10 and 12 miles an hour."

The appellant's theory of the accident was that appellee and her companion stepped out from the crowd of persons who were crossing the street, in front of his automobile, when it was only a few feet from them, and too late for him to bring his car to a standstill and avoid the accident. He testified that he stopped his machine on the east side of Fourth street, and did not again start it until the traffic officer gave the signal, following which he proceeded across Fourth street down to the point of the accident, at a slow rate of speed; that he sounded the horn of his machine upon starting it after the signal to move from the officer was given, but did not again sound it after starting, although he saw, as he admits, as many as 10 or 12 people on the crossing where appellee was injured, between the car track and pavement. In his opinion, as he stated, there was no necessity for sounding his horn, as he was on the track over which westbound cars run and the congested condition of the crossing did not extend across the street car track. With reference to the speed of the automobile at the time of the accident, appellant testified that it was not more than 3 or 4 miles an hour, in which he was corroborated by R. O. Wellman, by whom he seems to have been arrested immediately after the accident. Wellman, on cross-examination, said he saw appellee and her companions standing in the street awaiting the moving of the street car from the crossing, but that they did not step out suddenly in front of the automobile, as testified by appellant. Henry W. Newman, Jr., another witness for appellant, also expressed the opinion that at the time of the accident the speed of the automobile did not exceed 3 or 4 miles an hour.

Without further discussing the evidence in detail it is sufficient to say that it abundantly justified the submission of the case to the jury. That introduced for appellee, if believed by the jury, authorized the conclusion...