Owensboro City Railroad v. Wall , 142 Ky. 86 ( 1911 )

Opinion of the Court by

Judge Nunn

Affirming.

Appellee, late one afternoon, with his wife and children, was driving over the city of Owensboro, and when coming from the end of Breckinridge street, a street car, going the opposite direction, approached him across the tracks of a steam railroad making a considerable noise which frightened appellee’s horse. The horse turned the buggy around but was caught by a friend of appellee and stopped, and the motorman stopped.the car. Appellee and his friend made an examination and found that one of the shafts was broken near the cross-bar, and they took a hitch rain and rope and began to tie it up. The motorman told them that he could not wait on them any longer, and they began parleying with him trying to prevail upon him to wait until appellee got into his buggy before he started the car. When appellee got into his buggy he started off iu the direction the car was going with the intention of turning out the first street he came to, to a place of safety. As appellee started, the motorman started the ear, and, according to appellee’s testimony, traveled faster than he was traveling and overtook him at the street which he intended to turn out and just as he was turning out, frightened his horse and caused him to begin to run and-kick. Appellee stated that hé found that he could not stop the horse so he turned him into a wire fence; that Ms knee was injured, and that the horse and buggy were damaged for which he sued the company and recovered $397.50. Appellant’s testimony agrees with appellee’s, except that it shows that the car was not run upon or near the horse; that appellee had turned into another street and gone away from the car when the horse became suddenly frightened and ran away.

The court gave the jury three instructions; one on the question of damages, if they should find for plaintiff, and the other two, we copy:

“1. Gentlemen of the jury, if you believe' from the evidence that while plaintiff was passing along Breckenridge street in or near the city of Owensboro driving a horse attached to a buggy in which he and his family were riding at the time and the said horse became frightened at a car belonging to the defendant, Owensboro City Railroad Company, and in charge of one of its servants, and after said agent discovered that said horse was frightened at his car he stopped his car and negligently, carelessly and willfully failed to keep it stopped reasonably long enough time for the plaintiff to reach a place of safety, or ran said ear close to' said horse and by reason thereof said horse became frightened, ran off and injured the plaintiff’s knee,' damaged his buggy and injured the horse, then you ought to find for the plaintiff and so state in your verdict.’

“3. If you believe from the evidence that you have heard that the injuries of which the plaintiff complains in his petition and evidence were the result of his own negligence or carelessness, and but for his contributory negligence and carelesness, if any, he would not have been injured or damaged, then you ought to find for the defendant; or, if you believe from the evidence that the horse which the plaintiff was driving was vicious, wild and unmanageable, and by reason of that alone he received his injuries, then you ought to find for the defendant.”

The court should not have given the peremptory instruction asked for by appellant. When it saw that the horse was frightened it should have used reasonable care, under the circumstances, to not frighten it again, and if those in charge of the car had reason to believe that it would frighten the horse tounove the car near it, thev should not have done so, and if they did, they were guilty of negligence. The instructions submitted this question to the jury, and we are not willing to disturb its finding.

For these reasons, the judgment of the lower court is affirmed.