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

• Citation: 147 Ky. 549,144 S.W. 755
• Parties: SOUTH COVINGTON & C. ST. RY. CO. v. BARR.
• Decision Date: 16 March 1912
• Court: Court of Appeals of Kentucky

144 S.W. 755

147 Ky. 549

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

Court of Appeals of Kentucky.

March 16, 1912

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by Abbie E. Barr against the South Covington & Cincinnati Street Railway Company. From a judgment for plaintiff defendant appeals. Reversed, and new trial ordered.

Robert C. Simmons, for appellant.

Shaw &amp Ware, for appellee.

MILLER J.

The appellee, Mrs. Abbie E. Barr, was a passenger upon appellant's street car between 8 and 9 o'clock p. m on February 27, 1910, as it was proceeding westwardly on Fourth street in the city of Covington. The car was under the control of the motorman at Russell street, which is the second street east of and 966 feet distant from Main street. The proper course of the car was westwardly upon Fourth street until it reached Main street, and thence northwardly on Main street. Shortly after the car had passed Russell street, the bell rang for a passenger to alight at Johnson street. The car, however, failed to stop at Johnson street but proceeded with great speed to Main street, and, instead of turning north on Main street, it ran a short distance in the opposite direction, jumped the track, and went onto the sidewalk. The appellee was badly injured, and brought this action for damages. She recovered a judgment for $4,380 damages, and from that judgment the defendant appeals.

From an examination made of the car after the accident, it appeared that one of the screws holding in place a part of the mechanism of the controller had dropped out of place, and caused the controller to lock, thus preventing the motorman from regulating the speed of the car. Appellant introduced evidence tending to show that the car had been carefully inspected the night before the day of the accident; that it was then in good order; and that the accident occurred by the screw in the controller having worked out of place during the day. Appellee introduced testimony tending to show that, although the controller was locked as above indicated, the car, nevertheless, could have been stopped in two other ways: First, by the motorman throwing off the hood switch over his head; and, secondly, by the conductor pulling the trolley from the overhead wire. When it became apparent that the car had gotten beyond the control of the motorman, the conductor was in the car gathering fares; and, although he attempted to get to the rear end of the car for the purpose of pulling the trolley from the overhead wire, he failed in his attempt by reason of the excitement and confusion of the passengers, who got in his way and impeded his passage. It does not appear that the motorman attempted to throw the hood switch; and it is claimed that this was negligence.

No serious objection is made that the damages are excessive. The grounds relied upon for a new trial are (1) that the court erred in refusing to give instruction X asked by the appellant; and (2) in giving instructions 2 and 3.

The cause of action stated in the petition was based solely upon the gross carelessness and negligence of the appellant's agents in running the car at a great and excessive rate of speed. The answer contains a traverse, and a plea of contributory negligence. Instruction X, offered by appellant and refused by the court, was framed for the purpose of submitting to the jury the question whether appellant had performed its duty of inspection, which fact appellant claims must necessarily be considered in determining its liability under the evidence in this case.

The two controlling instructions given by the court are instructions Nos. 1 and 2, which read as follows:

(1) "It was the duty of the defendant to exercise the utmost care which careful and prudent persons are accustomed to exercise when engaged in the same or a similar business, and under like or similar circumstances as those in this case, in the...