Trout's Adm'r v. Ohio Valley Elec. Ry. Co.

• Decision Date: 17 November 1931
• Citation: 241 Ky. 144,43 S.W.2d 507
• Parties: TROUT'S ADM'R v. OHIO VALLEY ELECTRIC RY. CO. et al.
• Court: Kentucky Court of Appeals

43 S.W.2d 507

241 Ky. 144

TROUT'S ADM'R v. OHIO VALLEY ELECTRIC RY. CO. et al.

Court of Appeals of Kentucky

November 17, 1931

Appeal from Circuit Court, Boyd County.

Action by A. R. Trout's administrator against the Ohio Valley Electric Railway Company and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

Waugh &amp Howerton, of Ashland, D. E. Wilkinson, of Hamlin, W. Va., and J. E. Wilkinson, of Williamson, W. Va., for appellant.

Martin & Smith, of Cattletsburg, for appellee Ohio Valley Electric Ry. Co.

Wilson & Robinson, of Ashland, for appellee Prichard.

CREAL C.

On October 11, 1928, A. R. Trout alighted from a car of the Ohio Valley Electric Railway Company (hereinafter called the railway company) at Montague stop on Oakland avenue in Cattletsburg, and in attempting to cross the street came in collision with an automobile owned and driven by Dr. L. M Prichard. He sustained injuries which resulted in his death and his administrator instituted this action in the Boyd circuit court against the railway company and Dr. Prichard, alleging that decedent's death was caused by their joint and concurrent negligence. By appropriate pleading the issues were completed. At the close of plaintiff's evidence, each of the defendants moved the court for a peremptory instruction. The motion of the railway company was sustained and the jury, at the court's direction, found for it. The motion of Dr. Prichard was overruled and the case submitted to the jury as to him, resulted in a verdict in his favor. Plaintiff has prosecuted this appeal from the judgment as to each defendant. The only grounds submitted and argued for a reversal of the lower court's judgment relates to alleged error in instruction, but a consideration of the grounds necessitates a summary of the facts and circumstances shown by the record.

The paved and traveled portion of Oakland avenue at and near the point where the accident happened is about 23 feet in width. No part of the tracks of the railway company are upon the paved street but are adjacent thereto, and the main track parallels the street for some distance on the north side to the east and west. To the north of the main track is a switch or spur track. A meeting place is thus provided for cars going in opposite directions, east-bound cars going over the main track, and west-bound cars over the spur track. Montague stop is about midway of the spur track. It had been a custom for passengers to enter the rear of west-bound cars on the south side thereof and to leave the car from the front on the same side. Thus immediately before entering and after alighting from west-bound cars at this point, passengers were in the north edge of the street. To the south side of the street is a built-up residential section, but on the north side and between the tracks of the railway company and the river is open and unimproved land.

Mr. Trout had been employed to do some work on a building being constructed at Cliffside, between the cities of Ashland and Cattletsburg, and on the day of the accident had gone to that place to begin work. He was accompanied by Mr. Colbert Hinkle, whom he had employed to assist him. Finding that the foundation work being done by others had not progressed sufficiently for them to begin their work, they decided to return to their homes in West Virginia and, with that purpose in view, boarded an east-bound car of the railway company at Cliffside. Just before reaching Montague stop, it was discovered that Mr. Trout had left a suitcase containing clothing and articles belonging to one or both of them. It was decided that Mr. Trout would return for the suitcase while Mr. Hinkle would proceed to Kenova and there wait for him. When the car stopped to take on a lady passenger, Mr. Trout left by the rear door and had proceeded about halfway across the street where he came in collision with Dr. Prichard's automobile.

Witnesses, both for appellant and appellees, are in practical agreement as to the facts and circumstances leading up and connected with this unfortunate accident. Mrs. E. C. Norton, Colbert Hinkle, and Robert Owens were the only witnesses introduced by appellant who were in position to, or professed to know anything about the circumstances attending the accident. Mrs. Norton testified, in substance, that as she was attempting to board the car some man, seeming to be in a great hurry, jumped off, and pushed her aside with such force that she would have fallen had she not had hold of the rod. She did not see what occurred thereafter, except that after entering the car, she looked out and saw a man lying in the street. A number of other witnesses testified that decedent left the car in a very hurried and precipitate manner. All of the witnesses who saw the accident stated that decedent came in contact with the automobile about the center of the right side or just in front of the rear fender, and that at the time he was about the middle of the street.

Mr. Hinkle stated that he did not see the automobile until the collision occurred and could not testify as to the rate of speed it was traveling, but stated that Mr. Trout was knocked about 25 feet by the impact. Practically all other witnesses who testified on this point stated that deceased was lying near the point where he came in contact with the automobile.

Mr Owens, who was introduced by appellant, testified that Mr. Trout fell back and that his feet were about the same point after the fall that they were when he came in contact with the automobile. Mr. Owens further testified that he lives on the south side of the street directly opposite Montague stop and was on his front porch looking directly toward the street car. He stated that deceased hurriedly came off the car, started across the street, and had taken about three steps when he heard an automobile sound, and he then saw Dr. Prichard's automobile 10 or 12 feet away from deceased. He stated that it was not traveling over 15 or 20 miles an hour and "not making anything like speed" and was being driven about the middle of the street. Other witnesses stated that the automobile was traveling in the middle of the street, and six or eight of them fixed the rate of speed of the automobile immediately before the accident at 10 or 15 miles per hour. All witnesses agreed that the automobile swerved to the left and stopped in a very short distance on the south side. The weight of the evidence indicates that the automobile did not go more than 10 or 12 feet after the...