Public Service Co. of Indiana v. Schneider's Adm'r

• Decision Date: 07 May 1935
• Citation: 85 S.W.2d 676,260 Ky. 334
• Parties: PUBLIC SERVICE CO. OF INDIANA v. SCHNEIDER'S ADM'R (two cases).
• Court: Kentucky Court of Appeals

85 S.W.2d 676

260 Ky. 334

PUBLIC SERVICE CO. OF INDIANA v. SCHNEIDER'S ADM'R (two cases).

Court of Appeals of Kentucky

May 7, 1935

Rehearing Denied Sept. 24, 1935.

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

Actions by the administrator of Albert Schneider and Margaret Schneider against the Public Service Company of Indiana. Judgments for plaintiff, and defendant appeals.

Reversed.

Gordon Laurent & Ogden, of Louisville, for appellant.

Blakey Davis & Lewis, A. J. Deindoerfer, and John Kilgarriff, all of Louisville, for appellee.

STANLEY Commissioner.

The appeals are from two judgments of $2,995 each, rendered in the joint trial of suits for damages by the administrator of the estates of Albert Schneider and his wife, Margaret Schneider, on account of their respective deaths resulting from the headon collision of an automobile with a street car of the appellant. The accident occurred in New Albany, Ind about 9 o'clock in the evening of March 6, 1932. The verdicts were for the amounts claimed in the respective petitions.

The specific negligence charged is that the defendant operated its car "with inadequate lights and without giving any warning of its approach" and caused it to run into and against the automobile in which the decedents were riding.

Schneider's brother and a lady, who were riding in the back seat of the automobile, testified that it was going south about 20 miles an hour and that they did not see the street car until it loomed up in front an instant before the collision, although the automobile had good headlights burning and there was nothing to obstruct the view as it approached the point of the accident. Schneider, the driver, was talking with others in the automobile at the time. They heard no bell or gong and say that it did not sound. The motorman, introduced by the plaintiff, testified that there was little traffic and he was on time, so he was proceeding leisurely. He noticed the automobile coming down the hill and when he saw it on the track, after passing the curve or kink in it (to be described), he put his foot on the automatic gong and it started and continued sounding. When he saw the machine was not getting off the track, he applied the brakes and put the car in reverse, thereby locking the wheels. He thinks his car had come to a complete stop when the automobile struck it head-on, just a little to the left of center.

The defendant introduced four passengers on the street car. Three of them, who were near the front, saw the automobile coming and collide with the car. The street car had not been traveling fast, and if it had not come to a complete stop, it had practically done so. Two of these passengers had had their attention attracted by the sounding of the gong and the stopping of the car just before the collision.

An excellent engineer's map and perspective drawing give us a graphic presentation of the situation, but it is not easy of clear description. The accident occurred on State street, 30 or 40 feet south of a bridge over a creek. At a point about 160 feet north of the place of collision, the single car track swerves in a gradual compound curve to the west a distance of 3 feet to accommodate it to the narrowing of the roadway on the bridge and south of it, thereby remaining approximately in the center. Thus, the space between the west rail and the street curb is narrowed from 17 feet 6 inches to 14 feet 6 inches. If a vehicle moving south runs close along the outside rail north of the jog in the track and continues in a straight line after passing the curvature, it will be astride the west rail.

Along there the street lamps are on 12-foot standards, spaced 300 feet apart, but since they are staggered, there is such a light every 150 feet on alternate sides. There are also lights on each end of the bridge balustrades.

The street car was equipped with a 9-inch headlight in the center of the front. The lens was amber, with the ultra-violet rays chemically eliminated for the purpose, as proved by the defendant, of securing better projection through mists and of avoiding the blinding glare upon those meeting the car as well as the reflected glare upon the motorman. There were smaller lights near the upper corners, and near each side of the car, about the same height of the amber lamp, there were small lamps covered by hoods which shed the lights down across the front of the car and on the ground. Upon this occasion it was shown by the defendant's evidence that at least one curtain back of the motorman was up, thus revealing the lights inside.

The plaintiff presented evidence showing that optical confusion was created by these street lights and car lights and that a driver of an automobile approaching from the north could not tell there was a street car present until he was right on it. The witnesses themselves were somewhat confused, and widely differed as to the comparison of the street car lights with the street and automobile lights.

The defendant proved that the character of amber light on the street car was in general use on cars throughout the country and was the most effective method of lighting. The appellee not denying this, argues that, while such may be sufficient to meet general or ordinary...