
    South Covington & Cincinnati Street Railway Company v. Miller’s Administratrix.
    (Decided September 26, 1917.)
    Appeal from Kenton Circuit Court.
    1. Street Railroads — Injury to Traveler — Death—Proximate Cause. —In an action against a street railroad comp'any to recover damages for tbe death of a traveler on a public street, evidence , examined and held that tbe question, whether the injury inflicted by the company was the proximate cause of the.decedent’s death, Was for the jury.
    2. Street Railroads — Injury to Traveler — Death—Instructions.—In an action against a street railroad company to recover damages for the death of a traveler on a public street, an instruction telling the jury th'at it was the duty of the defendant in the operation of its car on the public highway, to have its car under reasonable control, to keep a lookout for the presence of persons upon or in proximity to its tracks, for the purpose of avoiding coming in contact with them, and to give reasonable and timely warning by the ringing of the gong of the approach of the car to persons ' upon or in close proximity to its tracks, and to exercise ordinary care to avoid striking persons upon and using the street; and that it was the duty of the plaintiff using the street, to exercise ordinary care to avoid being struck by cars operating upon the defendant’s tracks, is not subject to the complaint, that it defines withr too great particularity the duties of the motorman, but fails to state fully the duties of the plaintiff.
    
      3. Street Railroads — Injury to Traveler — Death—Instructions.—It is not error to refuse an instruction which is but the converse of a given instruction.
    4. Street Railroads — Injury to Traveler — Death—Instructions.—In an action against a street railroad company to recover damages for the death of a person pulling a truck along the highway, it was not error to refuse an offered instruction, telling the jury that the motorman had the right to presume that the truck would remain in a place of safety until by its movement some indication was given that it would leave its place of safety and get into a place of danger from the approaching car, for the reason that such an instruction ignores the duty of the motorman to give timely warning of the approach of the car, and a motorman in charge of a car approaching in the rear of a vehicle has no right to assume that the vehicle will not get on the tracks, unless he has taken the necessary steps to apprise the person in charge of the vehicle of the approach of the car.
    -LEWIS'F. BROWN for appellant.
    B. F. GRAZIANI for appellee.
   Opinion of the ' Court by

William Rogers Clay, Commissioner

Affirming.

Louisa Miller, as administratrix of Ferdinand Miller, deceased, brought this suit against the South Covington and Cincinnati Street Railway Company, to recover damages for his death. From a judgment in favor of plaintiff. for five thousand dollars ($5,000.00), the defendant appeals.

The accident occurred on Third street in the city of Covington, on April 28, 1914. At that time the decedent, Miller, was engaged in pulling a truck' with his hack towards the truck. One of the defendant’s cars, approaching from the rear, struck the truck or some object on the truck, and caused the tongue to strike the decedent in the small of his back. On July 7,191i5, while leaning over for the purpose of handling a casting, his back was fractured. He was carried immediately to the hospital, where he died on January 28, 1916. Suit was originally brought by the decedent himself, but upon his death, his administratrix filed an amended petition, asking damages for his death.

One of the grounds urged for a reversal is, that the trial court erred in not holding as a matter of law, that the street car accident of April 28, 1914, was not the proximate cause of decedent’s death. The argument is as follows; After the accident, the decedent continued to work. In his deposition taken at the hospital, he said that at the time his hack was broken, he was helping a man lift a little piece of casting and the man “let down on him.” While this is true, it appears from the testimony of the man who was present at the second accident, that decedent had not taken hold of the casting, but was merely leaning over for that purpose when his back gave way. It further appears that after the first accident, .decedent was given light work and was compelled to work in a stooping position. The physician who treated him says that decedent’s condition gradually grew worse, and that the final fracture of his back was due to the degeneration of the muscles, ligaments and bones caused by the original accident to his back. The proximate cause is that which stands next in causation to the effect, not necessarily in time or space, but in causal relation. Paducah Traction Company v. Weitlauf, 176 Ky. 82. While it is true that decedent’s back broke when he leaned over to pick up the casting, in July, 1915, or while he was engaged in lifting the casting, yet, if plaintiff’s evidence be true, the slight strain to which decedent was then subjected, would not have caused his back to break had it not been for the degeneration caused by the original injury inflicted by the defendant. "Under these circumstances, we conclude that it was for the jury to say whether or not the original injury was the proximate cause of decedent’s death.

In addition to other instructions not necessary to set out, the trial court instructed the jury as follows:

“1. The jury are instructed that it was the duty of the defendant in the operation of its car on the public highway, to have its car under reasonable control, to keep a lookout for the presence -of persons upon or in proximity to its tracks, for the purpose of avoiding coming in contact with them, and to give reasonable and timely warning by the ringing of the gong of the approach of the car to persons upon or in close proximity to its tracks, and to exercise ordinary care to avoid striking persons upon and using the street. It was the duty of the plaintiff in using the street, to exercise ordinary care to avoid being struck by cars operating upon the defendant’s tracks. If the jury shall believe from the evidence that at the time and place of the accident to the plaintiff, mentioned and described in the evidence, the defendant failed to have its car under reasonable control, or failed to keep a lookout for the presence of persons upon or in proximity to its tracks, or to give a signal of the approach of the car, or failed to exercise ordinary care to avoid coming in contact with the plaintiff, and that by reason thereof the defendant’s car struck the truck or the casting thereon, -being drawn by the plaintiff, and that by reason thereof the tongue or handle of the truck was caused to strike the plaintiff in the back, and he was thereby injured, and if the jury shall further believe from the evidence that by reason of the injury so received* if any, the muscles and ligaments of plaintiff’s back were so impaired or degenerated, that thereafter while preparing to lift a weight, such impairment or degeneration of the muscles caused a partial displacement or dislocation of the vertebra, and that by reason thereof his death resulted, the jury will find a verdict for the plaintiff. Unless the jury shall further believe from the evidence, as in the 2nd instruction, in which latter event the jury will find a verdict for the defendant. Unless the jury shall believe as in this, the 1st instruction, the- jury will find a verdict for the defendant.

“2. If the jury shall believe from the evidence that at the time and place of the accident mentioned and described in the evidence, the plaintiff failed to exercise ordinary care to. avoid coming in contact with the car, or being struck by it, and that but for such failure contributing thereto the accident would not have happened, and the plaintiff would not have.been injured, the jury will find a verdict for the defendant.”

The trial court refused to give the following instructions, which were offered by the defendant:

A. The court instructs the jury that if they believe from the evidence that the death of the plaintiff was not caused by his being struck or injured by defendant’s car at the time complained of herein, but was caused at some other time, or by some other cause, you will not find for the plaintiff on account of any injury or injuries resulting in plaintiff’s death, if such injury or injuries did result in plaintiff’s death, caused at some other time or by some other cause, or means.

“B. The court instructs the' jury that the defendant’s motorman was under no obligation to stop his car or to, check its speed, if it was not going at an unreasonable speed, as long as the truck or -v^agon mentioned in the proof, and which was being pulled by plaintiff, was in a place of safety from the approaching car, and the said motorman had the right to presume that the said truck or wagon would remain in a place of safety until by its movement some indication was given that it would leave its place of safety and get into a place of danger from tbe approaching car. And if tbe jury believe from tbe evidence that tbe said car was not being operated at an unreasonable rate of speed at tbe said time and place, and that tbe defendant’s motorman used ordinary care to check tbe car and prevent tbe collision as soon as be' discovered or could by tbe exercise of ordinary care have discovered, that tbe said truck or wagon which was pulled by plaintiff, was in danger from tbe approaching car, then tbe law is for tbe defendant, and the jury should so find.”

Complaint is made of instruction No. 1, because it defined at great length tbe numerous duties of tbe motorman in charge of tbe defendant’s car, but limited tbe duty of tbe decedent to tbe exercise of ordinary care, to avoid being struck by defendant’s car. In discussing tbe reciprocal duties of' a street car company and a traveler on a public street, in tbe recent case of Smith’s Administrator v. Louisville Railway Company, 174 Ky. 784, we said:

“While tbe right of a street railroad company to tbe use of that part of tbe public street or highway occupied by its tracks is paramount to that of tbe public, because of tbe fact that its cars run on a fixed track, yet, subject to this qualification, tbe rights of tbe company and of tbe traveler are equal and reciprocal, tbe traveler having as much right, if in the exercise of ordinary care, to go across or along such part of tbe street when not occupied by cars as across or along any other part of tbe street, and is not a trespasser in doing so. Out of this equality of right arise reciprocal obligations, it being tbe duty of tbe company, on tbe one band, to keep a lookout, to have tbe car under reasonable control, to give timely warning of its approach, and to use ordinary care to avoid injuring persons on, .or so near to, tbe track as to be in danger, and tbe duty of tbe traveler, on tbe other, to exercise ordinary care to learn of tbe approach of tbe car and to keep out of its way.”

It is clear that instruction No. 1 is in substantial compliance with tbe rule of tbe above opinion, tbe only difference being, that instruction No. 1 uses the words “to exercise ordinary care to avoid being struck by cars,” while tbe language employed in tbe above opinion is “to exercise ordinary care to learn of tbe approach of the car and to keep out of its way. ’ ’ Manifestly this difference is too slight to authorize a reversal.

It was not error to refuse to give instruction “A,” offered by the defendant, for it was in effect only the converse of instruction No. 1.

Nor clid the court err in refusing to give instruction “B,” offered by the defendant. That instruction, not only overlooked the duty of the motorman. to give timely warning of the approach of the car, hut authorized the motorman, without giving such warning, to presume that the truck would remain in a place of safety until by its movement some indication was given that it would leave its place of safety and get in a place of danger from the approaching car. As we have before seen, .the traveler' in charge of a vehicle has the right to use any portion of the public street, and a motorman should always operate his car with this right in view. It therefore follows, that where a car is approaching in the rear of a vehicle near the tracks, the motorman cannot assume that the vehicle will not get on the tracks, unless he has taken the necessary steps to apprise the person in charge of the vehicle of the approach of the car.

Judgment affirmed.  