Straight Creek Fuel Co. v. Mullins

• Decision Date: 26 November 1920
• Citation: 225 S.W. 726,189 Ky. 661
• Parties: STRAIGHT CREEK FUEL CO. v. MULLINS.
• Court: Kentucky Court of Appeals

225 S.W. 726

189 Ky. 661

STRAIGHT CREEK FUEL CO. v. MULLINS.

Court of Appeals of Kentucky.

November 26, 1920

Appeal from Circuit Court, Bell County.

Action by Artemisia Mullins against the Straight Creek Fuel Company. From a judgment for plaintiff, defendant appeals. Reversed.

James M. Gilbert, of Pineville, for appellant.

E. F Baker and E. Philpot, both of Pineville, for appellee.

QUIN J.

The question decisive of this appeal may be thus stated: Is there any liability for damages growing out of the erection and maintenance of a tramway trestle over a road used by the public to a person who, while riding in a wagon in broad daylight, upon approaching the trestle stoops to pass under it, but miscalculating the space between the wagon seat and the trestle, was caught between the two and injured?

This is an appeal from a judgment awarding plaintiff a verdict of $500 for injuries so sustained November 23, 1918. In making an air shaft to ventilate its mine, appellant erected a trestle to remove dirt and other refuse from its mine. This trestle was erected across a road formerly in general use by the public; but, owing to the construction of another road practically paralleling the road under the trestle, the latter was not used as much as formerly.

On the day of the accident, appellee, in company with several others, had been to the funeral of a kinsman. They went to the cemetery in a two-horse wagon containing two spring seats and a chair. Appellee, her daughter, and another sat on one of the spring seats. The trestle was located some 200 yards from her house. The accident happened in broad daylight. Appellee frankly admits she knew of the presence of the trestle. She saw it as they went to the funeral. All the occupants of the wagon, realizing the necessity of lowering their heads, leaned over as they passed underneath. Returning from the funeral by the same road, all passed safely under the trestle, excepting appellee. She occupied the same seat returning as going. Upon the return trip appellee says she saw one of those in front of her stoop as they approached the trestle. She (appellee) then leaned over, but not far enough. Having miscalculated the distance between the seat and the trestle, appellee was wedged between the two and sustained injuries for which she sought damages. When asked if she realized she would have to get down lower than the one sitting in the chair, she said:

"I wasn't studying about her getting through. I was studying about getting through myself. * * * Yes; I thought I had leaned far enough forward to clear the bridge all right."

But in this, as it appears, she was mistaken. So the proposition presented resolves itself into an answer to the question stated at the outset, viz.: Whether appellee is entitled to a recovery under the circumstances. One of the defenses relied on in the answer was that of contributory negligence. No reply was filed. This court has held in numerous cases that, in the absence of a denial, such plea must be taken as true. Under this state of the record there could be no recovery, since it stands admitted on the pleadings that the injury complained of was caused by the negligence of the complaining party. Nor did appellant waive its right to complain of the failure to file a reply by the introduction of evidence, as it saved its right in a proper manner by its motion for a poremptory instruction at the close of appellee's evidence and at the conclusion of all the evidence. This motion should have been sustained. We have held, however, that when a reversal is ordered on this ground plaintiff, upon the return of the case to the lower court, will be permitted to file a reply controverting this allegation. L. & N. R. R. Co. v. Paynter's Adm'r, 82 S.W. 412, 26 Ky. Law Rep. 761; Lou. Ry. Co. v. Hibbitt, 139 Ky. 43, 129 S.W. 319, 139 Am.St.Rep. 464.

Since, a reversal must be ordered for another reason, fatal to plaintiff's recovery, we will address ourselves to that. The public is entitled to an unobstructed passageway over the roads and streets of the commonwealth, and in the absence of knowledge of any defects or obstructions, has the right to assume the way is in a reasonably safe condition for travel, and is not required to constantly keep its eyes on the ground or road to discover defects therein. But a person with knowledge of defects in a roadway cannot assume it is in an ordinarily good condition and act upon that assumption. In such case the traveler must exercise care and prudence in proportion to the dangers from the known condition. See McQuillin on Municipal Corporations, § 2824. One with knowledge of defects and obstructions in a public way must use reasonable care to avoid them. However, mere knowledge of a defect in a public way at the time of or before using it is not per se contributory negligence. The injured party is not negligent, unless he knows both of the defect and also of the danger.

The question of contributory negligence is generally for the jury, but this is only true in those cases where the evidence presents a state of facts about which there might be a difference of opinion in the minds of reasonably fair-minded men. Where the facts are uncontroverted, and but one conclusion may be fairly drawn therefrom, viz. that plaintiff brought the injury upon herself by her own negligence there can, of course, be no recovery, although the defendant was also negligent. Hayden v. C., M. & G. R. R. Co., 160 Ky. 836, 170 S.W. 200; L.R.A. 1915C, 181; Wiley v. C., N. O. & T. P. Ry. Co., 161 Ky. 305, 170 S.W. 652; Lou. & Interurban Ry. Co. v. Morgan, 174 Ky. 633, 192 S.W. 672.

Contributory negligence on plaintiff's part necessarily assumes negligence on the part of defendant, but if the contributory negligence on the part of the injured person was such as without which the injury would not have been received, he is not entitled to recover. We find it impossible to distinguish the facts of this case from those found in Paducah Pole & Timber Co. v. Brockwell, 161 Ky. 424, 170 S.W. 970. In that case appellee was a driver for a third person, engaged in delivering staves to appellant, and was told by appellant's foreman to drive under the trestle, the usual passway being blocked, and while endeavoring to avoid a line of stumps he was struck by a bolt on the trestle and injured. His position on the wagon brought him in close proximity to the trestle. The trestle and stumps were before his eyes, and with knowledge of their existence he deliberately took the chance of coming in contact with the trestle. It was held that appellee's injuries were due to his own negligence in failing to exercise ordinary care for his own safety, thus defeating his right to recover.

In Poynter v. Alfred Struck Co., 169 Ky. 126, 183 S.W. 461 it was held that a person driving through a door or under a shed immediately before his eyes must take notice of the size thereof and not place himself in a position where there is liability of being struck. To the same effect is Interstate Coal Co. v. Deaton, 148 Ky. 160, 146 S.W. 396. In this case appellee, a boy 17 years of age, while driving a wagon loaded with baled hay through a barn belonging to appellant, was struck and severely injured. He had worked for appellant about 11 days. As he started through the door he saw the crosspiece and bowed his head low enough to miss it. After getting his head under the crosspiece he felt the wheels rise upon the sill, and he was caught between the hay and the crossbeams, and his back was wrenched. Although it was contended he did not know of the existence of the lower sill, and did not know or appreciate the danger under the circumstances, a judgment in his favor was...