South Covington & C. St. Ry. Co. v. McCleave

• Decision Date: 03 February 1897
• Citation: 38 S.W. 1055
• Parties: SOUTH COVINGTON & C. ST. RY. CO. v. McCLEAVE.
• Court: Kentucky Court of Appeals

38 S.W. 1055

SOUTH COVINGTON & C. ST. RY. CO. v. McCLEAVE.

Court of Appeals of Kentucky.

February 3, 1897

Appeal from circuit court, Campbell county.

"Not to be officially reported."

Action by William McCleave against the South Covington & Cincinnati Street-Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Simrall & Galvin, for appellant.

Wright & Anderson, for appellee.

LEWIS C.J.

The cause of this action, as stated by appellee in his original petition, is that while occupying, as passenger, a seat in an electric street car belonging to appellant, that was going over the bridge from Cincinnati, Ohio, to Newport, Ky. his right elbow, which protruded through the window slightly outside the car, came in contact with an iron girder of the bridge, and his arm was broken in two places; that said injury resulted from negligence of appellant in failing to provide a screen or guard on sides of the car, so as to prevent passengers putting their arms or other parts of the body outside the windows; and in failing to put, on the inside of the car, printed notice or warning of the danger to passengers thus exposing their persons. To the petition, a general demurrer was sustained; and thereupon appellee filed an amended petition, in which he stated that the conductor having charge of the car in which the injury occurred saw the peril of appellee in time to have warned him of his danger so that he could have withdrawn his arm, and avoided the injury. To the petition thus amended, appellant filed answer in the first paragraph of which is contained a denial that said conductor saw appellee's peril in time to warn him of it, and in the second is the statement that appellee voluntarily and negligently put his arm through and beyond the window frame of the car in which he was riding when injured, and but for that carelessness and negligence the injury would not have occurred. But to the second paragraph of the answer a general demurrer was sustained, thus leaving for trial the single issue stated in the following and only instruction given: "If the jury believe from the evidence that the conductor in charge of defendant's car saw the plaintiff with his arm out of the car window, so as to be in danger of being struck by any part of the bridge, in time to have warned him of his peril, before the accident occurred, and failed so to warn him, they will find for the plaintiff, and will fix his...