Thurman v. Ky. Traction & Terminal Co.

• Decision Date: 01 March 1927
• Citation: 218 Ky. 594
• Parties: Thurman v. Kentucky Traction & Terminal Company. Goins v. Same. Clark v. Same.
• Court: United States State Supreme Court — District of Kentucky

218 Ky. 594

Thurman v. Kentucky Traction & Terminal Company.

Goins v. Same.

Clark v. Same.

Court of Appeals of Kentucky.

Decided March 1, 1927.

1. Railroads — Instruction that Failure of Guests in Automobile to Use Ordinary Care to Avoid Interurban Car Would Bar Recovery Held Proper Under Evidence. — In personal injury action by guests

of driver of automobile, when automobile was struck by interurban car, instruction that driver's negligence was not imputable to plaintiffs, but that their failure to use care usually expected of ordinarily prudent person to learn of approach of car at dangerous crossing would bar recovery, even though defendant's employee was also negligent, held proper under evidence.

2. Railroads — Automobile Driver is Not Contributorily Negligent for Error of Judgment in Escaping from Danger Created by Railroad's Negligence. — Automobile driver, placed suddenly and unexpectedly in dangerous position, due to railroad's negligence, is not guilty of contributroy negligence for error of judgment as to best course to pursue in escaping.

3. Appeal and Error — Failure to Give Instruction as to Negligence in Escaping from Unexpected Dangerous Situation Held Not Reversible Error, in View of Finding (Civil Code of Practice, Section 756). — In automoble driver's personal injury action when automobile was struck by interurban car, failure to give instruction that error of judgment in escaping from unexpected dangerous situation created by defendant's negligence was not contributory negligence held not prejudicial, and therefore not reversible error in view of Civil Code of Practice, section 756, where it could not affect result, owing to jury's obvious conclusion that he was negligent before reaching crossing.

Appeals from Franklin Circuit Court.

LESLIE W. MORRIS and FRED A. VAUGHAN for appellants.

ALLEN, BOTTS & DUNCAN, WALLACE MUIR, W.W. MEEKS and POLK SOUTH. JR., for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming.

These three actions were brought by appellants against the Kentucky Traction and Terminal Company to recover damages for personal injuries received by them when a Ford car in which they were riding collided with an interurban car of the defendant near the Duncan crossing in Franklin county. On the hearing of the case the jury found for the defendant. The plaintiffs appeal. W.E. Clark lived in Lexington and owned the car. He had invited Thurman and Goins to go with him and they were on their way to a dinner at a point beyond Frankfort from Lexington. The Duncan crossing is about three miles east of Frankfort. According to the proof for the plaintiffs, as they approached this crossing Clark, who was driving the car, brought it nearly to a stop, but hearing no signal of the approach of the interurban and seeing none, drove slowly on to the track. When he got on the track the interurban car was discovered about 50 feet from him, coming rapidly. He then put on the gas. The wheel of his car turned on striking the far rail of the track and he lost control of the steering wheel. The car turned down the track and ran into the approaching interurban, 10 or 15 feet west of the crossing. The interurban was going east or coming from Frankfort. Clark's statement of the accident is in these words:

"I stopped there at Mr. Thurman's house and asked them to go with me. They got in the car with me and came down to this crossing at Duncan's. Within about twenty-five feet of this crossing I come to almost a stop with my automobile. I looked each way and saw no car coming; didn't hear any sign of a car; then I proceeded on my way toward Frankfort. After I got up on the track I seen a car come dashing around the bend and I put on all the gas I had to get out of the way of that car. My wheel hit the rail and turned in my hand; got clear loose from my hand. I lost control and before I could regain control of it I was hit by the interurban."

Thurman and Goins give similar testimony, and to the same effect is the testimony of one person on the interurban car, who stated that the car was running about 25 miles an hour and gave no signal of its approach at the crossing. On the other hand, the defendant proved by a man who was running a truck that the plaintiffs passed him several hundred feet east of the crossing running very rapidly in their car; that he followed on behind them; that they ran upon the crossing without checking their speed at all; that he saw the interurban car coming and also heard its signals for the crossing. Two men working for the telephone company, a few hundred feet west of the crossing saw the interurban pass; heard it blow for the crossing and testified that it was running very slowly as it approached the crossing. The motorman testified, and his testimony is confirmed by three of the passengers on the car, that at this crossing there was a pole from which he telephoned to get orders and he always stopped; that he had slowed down his car for the purpose of a stop, after giving the usual signals of his approach, and while he was coasting down to the crossing, at a very slow rate of speed, the plaintiff's car when it reached the crossing turned and ran down the interurban track 43 feet, before it struck his car; that when it struck his car it broke the air chamber and this released the brakes on his car and, it being down grade, his car pushed the automobile back to...