Wigginton's Adm'R v. Louisville Railway Co.

• Decision Date: 19 June 1934
• Citation: 256 Ky. 287
• Parties: Wigginton's Adm'r v. Louisville Railway Co. et al.
• Court: United States State Supreme Court — District of Kentucky

256 Ky. 287

Wigginton's Adm'r v. Louisville Railway Co. et al.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided June 19, 1934.

1. Pleading. — That which plaintiff desires to prove as his cause of action he must first allege.

2. Automobiles; Street Railroads. — In action against city and street railway company for motorist's death allegedly caused by defective condition of street adjacent to rail causing automobile to swerve in front of street car, evidence establishing that street car rail was defective or slivered held inadmissible.

3. Pleading. — Issue raised by evidence but not made by pleadings is not an issue in case.

4. Pleading. — Plaintiff's pleading and proof must agree.

5. Pleading. — Negligence may be alleged generally.

6. Negligence. — Under general allegation of negligence, plaintiff may prove any acts of negligence of defendant, but, where plaintiff alleges special acts of negligence or couples allegations of specific acts of negligence with charge of general negligence plaintiff must confine evidence and right to recover to specific acts.

7. Evidence. — It is matter of general knowledge that street car tracks in paved street must be embedded in surface of street so as to receive wheel for operation of street car.

8. Negligence. — "Proximate cause" is that cause of injury which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which injury would not have happened, or it is that act or omission which immediately causes or fails to prevent the injury.

9. Negligence. — In negligence action, evidence merely furnishing basis of conjecture, surmise, or speculation does not establish proximate cause with certitude, sufficient upon which to rest a verdict.

10. Municipal Corporations; Street Railroads. — Street railway company and city are liable for consequent injury for their failure to keep street car track and surface of street adjacent thereto in reasonably safe condition, but they are not insurers of safety of travelers.

11. Negligence. — If evidence is equally consistent with existence as with nonexistence of negligence on part of defendant, he is entitled to peremptory instruction.

12. Evidence. — "Scintilla evidence" means something of substance and relevant consequence and not vague, uncertain, or irrelevant matter not carrying quality of proof or having fitness to induce conviction.

13. Damages. — Damages recoverable in any case must be shown with reasonable certainty, both as to their nature and in respect to cause from which they proceed.

14. Automobiles; Street Railroads. — In action against street railway company and city for motorist's death allegedly caused by defect in surface of street adjacent to street car track which caused automobile to suddenly swerve in front of street car, evidence on question of proximate cause held insufficient to take case to jury.

Appeal from Jefferson Circuit Court

HUBBARD & HUBBARD for appellant.

PETER, LEE, TABB, KRIEGER & HEYBURN for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

This appeal requires a review of a trial of an action to recover of the Louisville Railway Company and the city of Louisville for the death of Everett B. Wigginton caused by their alleged negligence.

On the 12th day of October, 1922, Wigginton was traveling in an automobile on Market street in the city of Louisville, at which time and place the Louisville Railway Company maintained double car tracks.

Wigginton's cause of action is predicated on the charge the railway company and the city "had suffered and permitted East Market Street at a point about one hundred feet of its intersection with Shelby Street in said City to become out of repair and in a dangerous and defective condition, in that the surface of the street adjacent to the outside of the south rail of the east bound track of the defendant, Louisville Railway and the surface of the street adjacent to the inside of the north rail of the east bound track to become worn and defective and to sink below the surface of the street, and the rails of the said street car track to stand up above the surface of the street creating a depression along in the street adjacent to the street car rails; and that the said street had remained in this condition for a long period of time and that the defendants, and each of them, knew or by the exercise of ordinary care could have known of the existence of said defect in the street," and "on the 12th day of October, 1932, at or about the hour of 2:30 P.M., Everett B. Wigginton was driving his automobile in an eastwardly direction on Market Street and on or near the east bound track of the defendant, Louisville Railway Company, when by reason of the depression in said street adjacent to the said street car track and by reason of the rails of said track extending above the surface of the street, the automobile in which he was riding was caused to swerve and be thrown in front of a west bound Market Street car at said time and place, causing the said west bound Market Street car to strike and run into the automobile in which he was riding, with great force and violence, hurling him to the street and inflicting such fatal injuries upon him that by reason of same he died on October 19th, 1932."

The railway company and the city filed separate answers, each traversing the petition and pleading contributory negligence of Wigginton, which were controverted by replies.

At the conclusion of the evidence offered by Wigginton's estate, the court gave a peremptory instruction; a verdict was accordingly returned and a judgment entered dismissing the petition. Wigginton's estate appeals, insisting the evidence establishes that the railway company and the city failed to keep the street along the side of the tracks of the street railway and adjacent thereto in reasonable repair and neglected to perform this duty, and their negligence, if not positively shown, may be inferred from the facts and circumstances proven in the case. The estate argues:

"We believe the proof in the case was sufficient to take the case to the jury at least as to the Louisville Railway Company; we prove with certainty the accident was occasioned by reason of the defective condition of the street adjacent to the car tracks and the car tracks, themselves, stick up above the street."

A disposition of this perplexing question requires a review and an examination of the developed facts.

On the morning following the accident, Everett C. Wigginton, the father of Everett B. Wigginton, went to the scene of the accident and observed the condition of the street and the railway tracks. At that time "the rail was jagged and rough," and it was his opinion the street railway tracks were from three to four inches above the surface of the street; "there were holes there something like three or four inches wide and probably that deep, "right by the car tracks," "both tracks going east."

John Hassen described the car tracks thus: "The car track was setting up above two or three inches above the street;" "the trolley would jump off;" "there were ruts all along there;" "about two or three inches deep;" "those ruts were deep enough for an automobile to get a wheel caught in them;" "lots of machines come by there and popped like a pistol when they hit them places." Hassen witnessed the accident in which Wigginton sustained his injuries. To be accurate we reproduce the questions propounded to, and answered by, him:

"Q. I want you to go ahead and tell the jury what you saw there as to how the accident actually happened? A. As soon as it hit I ran over to the man.

"Q. Where was the street car I am talking about now before it hit? A. The street car was coming down the street in a very good speed.

"Q. On what track was the street car? A. On the westbound car track.

"Q. If the automobile was on the eastbound car track and the street car was on the westbound car track tell the jury how they got together? A. No sooner than they got close enough to get together, the automobile jumped — jumped sideways like over in front of the street car.

"Q. Now, could you tell what caused the automobile to jump from where you were? A. Not exactly. * * *

"Q. How fast was the automobile being driven at the time? A. It looked to me like about ten or fifteen miles an hour, just leaving the intersection.

"Q. What happened to Mr. Wigginton after the automobile and the street car came together? A. He rolled out right on top of both of my feet.

"Q. What part of the street car did the automobile come in contact with? A. On the lefthand corner.

"Q. What part of the automobile struck the lefthand corner? A. The lefthand —

"Q. You mean, the automobile struck the lefthand corner of the street car? A. The left side of the automobile.

"Q. Was the right side of the automobile damaged in any way? A. No sir; not as I could see.

"Q. Now, at the point that you have described here as the track being two or three inches above the street and the rut, state whether or not that is the point that the car jumped in front of the street car? A. That is the point.

"Q. The automobile jumped? A. Yes, sir; that is the point.

"Q. How long had you observed machines passing there and which you say would pop on that rail there before the accident? A. I lived right there in that one place for four years exactly, and I would sit out there very often."

Richard Diebold was asked and answered as follows:

"Q. Did you see on Columbus Day an accident between Mr. Wigginton's automobile and a street car? A. Yes, sir.

"Q. Where were you at the time? A. I was standing in the show window of 807 East Market.

"Q. Which way were you looking? A. I was talking to Mr. Taylor; we were talking about the store room that was for rent right in front of where the accident happened, at 812; we were looking on about a forty-five degree angle.

"Q. What was the first you saw of the...