
    Owensboro City Railway Company v. Tucker.
    (Decided June 11, 1912.)
    Appeal from Daviess Circuit Court.
    1. Instructions — Ordinary Care and Negligence — Definition of. — In an action against a street railway company for personal injuries, an instruction telling the jury that “By ordinary care is meant such care as is usually exercised by ordinarily prudent persons, and by negligence is meant the absence of ordinary care,” there should have been added tbe qualifying clause “of like or similar conditions.” Tbe standard of ordinary care varies with varying circumstances — tbe greater tbe danger tbe greater tbe care, tbe less tbe danger the less tbe care.
    2. Street Railways — Action Against For Personal Injury — Instructions. — An instruction excusing tbe railway company only upon condition that tbe plaintiff “knowing of tbe approach of tbe car,” attempted to cross the track, was highly prejudicial to it.
    E. B. ANDERSON, FUNKHOUSER & FUNKHOUSER for appellant.
    GEORGE S. WILSON for appellee.
   Opinion of the Court -by

Judge Winn —

Reversing.

In April, 1911, James Tucker, starting to walk across Main- street in Owensboro at the intersection of Elm street, collided with or was struck by a car of the appellant railway company. He brought his action below against the company to recover for his injury and obtained a judgment for $1,000. The railway company appeals.

There is no complaint that the case should not have gone to the jury. A reversal is asked because of tbe instructions given, and certain testimony admitted in plaintiff’s behalf. Tbe instructions were erroneous and demand tbe desired reversal.

Tbe fourth instruction attempted to define ordinary care and negligence in these words: “By ordinary care is meant such care as is usually exercised by ordinarily prudent persons, and by negligence is meant tbe absence of ordinary care.” As is well said by appellant, tbe standard of ordinary care varies witb varying circumstances — tbe greater 'the dánger, tbe greater tbe care, tbe less tbe danger, tbe less tbe care. What might be adequate care under ordinary conditions might be wholly inadequate care under extraordinary conditions. Tbe observation is well illustrated by tbe facts in tbe case at bar. There were two vehicles, a covered huckster’s wagon and a top buggy, standing along side each other between tbe car track and tbe sidewalk of tbe street where tbe car was approaching. The evidencé tends to show that Tucker’s view of tbe approaching car was obscured by them. Obviously if this be true tbe surroundings at that point of crossing were those of more than ordinary danger. If tbe vehicles obscured tbe vision of the motorman of the car the measure of ordinary care owed by him in operating the car might be larger than such as would obtain under everyday conditions. This court has adopted a plain and satisfactory definition of ordinary care in many cases, among which may be mentioned those of West Kentucky Coal Co. v. Davis, 138 Ky., 667, and C., N. O. & T. P. Ry. Co. v. McElroy, 146 Ky., 668. In substance the definition of ordinary care is “such care as an ordinarily prudent person will usually exercise under circumstances like or similar to those proven in this case. ’ ’ Had the trial court in the case at bar added the qualifying measure of like or.similar conditions, an apt standard would have been set up for the jury’s guidance in the peculiar condition of fact above set out. While we might be disposed to consider the error ordinarily as rather a narrow ground upon which to base a reversal, it seems that the omission of the qualifying clause in the case at bar was misleading.

Upon the trial the court gave an instruction in the following words:

“The court instructs the jury that if they believe from the evidence that the car which struck plaintiff was running at a reasonable rate of speed at the crossing of Main and Elm streets, and notice of its approach thereto was given by ringing the gong, and plaintiff attempted to cross the track, knowing of the approach of the car so close to the approaching car that the motorman in the exercise of ordinary care, and with the means at his command for stopping said car was not able to stop it before injuring plaintiff, then the law is for the defendant, and the jury should so find.”

This instruction was offered by defendant without the words “knowing of the approach of the car” in it. These words were added by the court and the instruction as modified by them was given in the language quoted, over the defendant’s objection. The instruction in this form was highly prejudicial to the railway company. If the defendant had as a matter of fact discharged its duties of signaling the car’s approach and of operating the car at a reasonable rate of speed (there being no claim of any actual discovery of Tucker’s peril) it had done all that was required of it; and if the plaintiff was injured in attempting to cross the track over which defendant’s car was being properly operated, his right to recover, or rather the railway company’s obligation to pay, under tbe facts proven, is not affected by his knowledge or bis non-knowledge of tbe ear’s approacb. Tbe instruction given excused tbe railway company from payment, no matter if it bad discharged every duty owed by it, only upon the condition that Tucker knew of tbe car’s approacb. Tbe mere statement shows tbe harmful error in tbe instruction as given. As offered by tbe defendant, without tbe words “knowing of tbe approacb of tbe car” embraced in it, tbe instruction should have been given. Tbe instruction is not sustained by tbe cases of Louisville Railway Co. v. Byers, 130 Ky., 437; Louisville Ry. Co. v. Gaugh, 133 Ky., 467, and Whitman’s Admr. v. Louisville Ry. Co., 134 Ky., 6, cited by appellee. In each of them this phase of tbe discussion turned upon tbe issue that tbe party injured, seeing tbe car’s approacb, endeavored to cross tbe track hurriedly in front of it. These cases, in line with tbe only reasonable view, bold that if tbe traveler knowingly assumes tbe risk of crossing in front of tbe car, tbe motorman meantime discharging bis duty, there can be no recovery. If such facts were in tbe case at bar, an instruction on them should have been given as indicated in tbe Laugh case, and not in tbe misleading language quoted above as given in tbe case at bar; but in the absence of testimony upon such an issue, this phase of tbe matter should have no further discussion. Tbe motorman testified that Tucker ran out from behind tbe vehicle, but did not say that be endeavored to burry across tbe track in front of tbe car.

Complaint is also made by appellant of tbe admission of tbe testimony of Dr. E. E. Pennington. Tbe record, however, fails to disclose any objection upon the trial to tbe admission of this testimony, or any exception to tbe fact that it was admitted. We are, therefore, not permitted to review upon this bearing tbe competence of that testimony. There was, however, submitted to this physician a hypothetical question, framed upon a.n inquiry as to whether or not tbe condition in which this physician bad found Tucker could have resulted from tbe injuries which tbe evidence disclosed be bad suffered. To this, question proper objection was entered, and to tbe admission of tbe answer proper exception was saved. The admission of this testimony was not error. As to whether or not this testimony would have been competent bad proper objection been entered to tbe preceding testimony of this witness we are not permitted to decide. That question is not before us, and cannot be before us until such time, if ever, as the entire body of testimony of this witness may, ón proper exception, be presented to us.

Complaint is likewise made of the testimony of Samuel Tucker, a son of James Tucker, who, over the objection of the railway company, was permitted to state the appetite of the injured man at a later time was bad, and that he did not sleep well. The admission of this testimony was proper. The loss of appetite and inability to sleep.were not set up in the petition as a specific injury for which the plaintiff sought recompense; but plaintiff testified that as' a result of the accident he could not sleep well,- and that he had no appetite, conditions which were admissible in evidence under the pleadings as made, because they reasonably and properly might be expected to follow the shock of the collision and thé in-injuries described. The son’s testimony, corroborative of that of the plaintiff’s father, was competent.

The judgment of the trial court is reversed.  