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

• Decision Date: 26 March 1908
• Citation: 108 S.W. 848
• Parties: SOUTH COVINGTON & C. ST. RY. CO. v. BESSE.
• Court: Kentucky Court of Appeals

108 S.W. 848

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

Court of Appeals of Kentucky.

March 26, 1908

Appeal from Circuit Court, Campbell County.

"Not to be officially reported."

Action by Frank Besse against the South Covington & Cincinnati Street Railway Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

L. J Crawford, for appellant.

Arthur C. Hall, for appellee.

HOBSON J.

At the intersection of Berry street and Sixth street in Dayton, Ky there are double tracks of the street railway. The street cars turn here from Sixth street into Berry street. Frank Besse, on October 5, 1906, was driving along Sixth street and as he got to the intersection of Sixth street and Berry street he met a street car going in the opposite direction. He was driving along on the other track of the street railway, and as the street car made the turn the hind end of the car as it turned on the curve swung out beyond the track and thus came in contact with the hind end of Besse's wagon. By the collision he was thrown against the brake, and he brought this suit to recover for his injuries. A trial was had before a jury, who found for him, and fixed the damages at $500. Judgment was entered upon the verdict, and the defendant appeals.

The evidence for the plaintiff showed that his wagon was struck by the hind end of the car while the wagon was within the rails of the other track of the railway company. It also showed that the motorman saw Besse as he passed him, but did not see him afterwards. The car was running about three miles an hour, and there was no lurch of the car, and nothing more of a swing by the hind end than always occurred at that point when a car of this length passed; but the car was an unusually long one, and therefore the hind end swung out further as it turned than the hind end of a shorter car would do. The proof for the defendant was to the effect that Besse after passing the motorman, drove between the tracks, and got nearer to the car, thereby causing the collision. The defendant introduced proof showing that the hind end of the car never reached over as far as the other track. It is the duty of those in charge of street cars to keep a lookout for persons and vehicles on the street, and to exercise ordinary care to avoid injuring them. It is the duty of those driving other vehicles to keep a lookout for the cars, and to exercise ordinary care to keep out of...