South Covington & Cin. Street Ry. Co. v. Pelzer
| Decision Date | 13 March 1897 |
| Citation | 115 Ky. 883 |
| Parties | South Covington & Cincinnati Street Ry. Co. v. Pelzer. |
| Court | Kentucky Court of Appeals |
APPEAL FROM CAMPBELL CIRCUIT COURT.
JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED.
SIMRALL & GALVIN, ATTORNEYS FOR APPELLANT.
COPYRIGHT MATERIAL OMITTED
HORACE W. ROOT AND R. C. TAYLOR, FOR APPELLEE.
The plaintiff below and the appellee here filed his petition in the Campbell circuit court on the 10th of March, 1894, alleging that on the 14th day of March, 1893, while driving a horse attached to a wagon over the central railway bridge, from the city of Newport to Cincinnati, a car belonging to defendant, while running over said bridge in the same direction, was operated by the employes of said company in such a negligent and reckless manner that said car ran against the wagon driven by the plaintiff, with great violence, forcing the wagon and horse to one side, breaking the wagon and throwing the plaintiff on the floor of the bridge so as to break his leg and to inflict on him very serious injuries, from which he was confined for at least five months thereafter.
The defendant, in its answer, denied all negligence and carelessness, and, in fact, all the affirmative allegations of plaintiff's petition, and alleged in a second paragraph that if the plaintiff received all the injuries complained of by him, same were caused and received wholly, and through, and by reason of his own negligence and carelessness, in that plaintiff was driving a horse and wagon in the regular driveway on the bridge built and set apart by the corporation for the use of wagons and teams, and that when the car of defendant was on the track set apart for the use of cars, and when said car was almost past said horse and wagon then being driven by plaintiff, and there being at the time ample room for its passage without collision, plaintiff carelessly and negligently and recklessly pulled his horse toward the car, and ran the wagon against the side of the car, and thereby caused the horse to break loose from the wagon, and that plaintiff was pulled from the wagon by the horse and thrown upon the floor of the bridge, by which he received the injuries complained of.
There was a reply denying the allegations of the second paragraph. The plaintiff and his witnesses proved the facts of the collision substantially as charged in the petition, whilst the defendant, on the other hand, by the conductor and motorman proved the collision to have occurred substantially as charged in the answer. The jury returned a verdict of $2,000 in favor of plaintiff, upon which judgment was entered, and this appeal is prosecuted to reverse that judgment. A number of errors are assigned by appellant. The first is, that the court erred in permitting the two attorneys of plaintiff to testify in rebuttal about their examination and inspection of a car belonging to appellant, more than a year after the accident; second, error in refusing instructions asked by appellant; third, errors in instructions given by the court; fourth, that the judgment was against the law and evidence.
It had been developed in the evidence of the employes of defendant that the car which was involved in the collision was a closed winter car of large size, No. 35, and the motorman and conductor testified that right in the center of the car, over the figures 35 — which was the number of the car — there was a mark or indentation showing where the wheel of the wagon driven by appellee had struck. This fact was testified to by a...
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