Owensboro City R. Co. v. Haden

• Decision Date: 15 October 1913
• Citation: 159 S.W. 792,155 Ky. 283
• Parties: OWENSBORO CITY R. CO. v. HADEN. LOUISVILLE, H. & ST. L. RY. CO. v. SAMEL.
• Court: Kentucky Court of Appeals

159 S.W. 792

155 Ky. 283

OWENSBORO CITY R. CO. v. HADEN.

LOUISVILLE, H. & ST. L. RY. CO. v. SAMEL.

Court of Appeals of Kentucky.

October 15, 1913

Appeals from Circuit Court, Daviess County.

Action by J. T. Haden against the Owensboro City Railroad Company and the Louisville, Henderson & St. Louis Railway Company. From a judgment against each defendant, they prosecute separate appeals. Affirmed in each instance.

E. B Anderson, of Owensboro, Funkhouser & Funkhouser, of Evansville, Ind., and C. M. Finn, of Owensboro, for appellant Owensboro City R. Co. J. R. Skillman, of Louisville, and R A. Miller and Miller, Sandidge & Malin, all of Owensboro, for appellant.

Louisville H. & St. L. Ry. Co. Le Vega Clements and Ben D. Ringo, both of Owensboro, for appellee.

HOBSON C.J.

The track of the Louisville, Henderson & St. Louis Railroad Company crosses West Ninth street in Owensboro, Ky. The Owensboro Street Railway Company operates its cars along west Ninth street; the trolley being placed under a contract between the two companies 22 feet above the track of the railroad company. On June 27, 1912, about 3 o'clock in the morning, a road ditcher was taken from Owensboro down Ninth street; it carried a boom and mast about 18 feet high and considerable damage was done to the poles and guy wires while the ditcher was passing along the street, by reason of which, according to the weight of the evidence, the trolley wire sagged about two feet where it crossed the railroad. About 7 o'clock that morning the work train of the railroad company went out of Owensboro and passed under the trolley wire without trouble. In the train was a derrick car which carried a mast extending up 19 1/2 feet above the tracks and a boom 28 feet along; the boom being anchored to the mast and standing at an angle of about 45 degrees. About noon the work train returned to Owensboro, and in passing over Ninth street either the mast or the boom came against the trolley wire, causing it to break in two and strike J. T. Haden a workman, who was on the street near by getting a drink of water from a water barrel provided for the workmen. He was severely injured by the electricity which the wire carried and brought this suit to recover for his injuries against the street railway company and the railroad company. On the first trial of the case he recovered a verdict against the railroad company for $2,500; the jury finding in favor of the street railway company. Upon motion the court set aside the verdict and granted a new trial. On the second trial of the case there was a verdict in favor of Haden against the railroad company for $1,500 and against the street railway company for $500. The court entered judgment on the verdict; both companies appeal, and Haden prosecutes a cross-appeal against the railroad company insisting that the court erred in setting aside the first verdict as to it.

On the first trial of the case, the court instructed the jury in substance that it was the duty of the street railway company to use ordinary care in keeping...