
    Louisville Railway Company v. Everett.
    (Decided May 1, 1923.)
    Appeal from Jefferson Circuit Court (Common Pleas, Second Division).
    Street Railroads — State Motor Vehicles Act Does not Determine Right of Way Between Automobile and Street Car — “Vehicle.”— Motor Vehicles Act 1920, section 1 (Ky. Stats., section 2739gl), defining “vehicle,” as used in the act, as all vehicles passing over the highways, except road rollers and those which travel exclusively by rail, prevents that act from applying to determine the right of way between an automobile and a street car approaching on intersecting streets, and the right of way in such circumstances is therefore governed by an applicable city ordinance, so that it was error to instruct the jury under the state law that the street car had the right of way, when the automobile had the right of way under the city ordinance.
    PETER, LEE, TABB & KRIEGER and ALFRED SELLIGMAN for appellant.
    EUGENE R. ATTKISSON for appellee.
   Opinion of the Court by

Chief Justice Sampson—

Affirming.

Appellee Everett sued the street railway company to recover damages for injuries sustained by him in a collision between his automobile and an electric car which occurred at the intersection of Chestnut street and 28th street in Louisville, as he was driving along Chestnut street in a westernly direction, and the electric car was traveling south on its tracks on Twenty-eighth street.

On the first trial the jury returned a verdict for the street railway company. The circuit court granted a new trial. The second trial resulted in a verdict for the plaintiff in the sum of $500.00.

This appeal is prosecuted by the street railway company from a judgment setting aside the first verdict and judgment and granting a new trial. The sole question presented is the correctness of the instructions given by the court' upon that trial. It is admitted that the trial in other respects was regular. -Conceiving that the act of the general assembly of 1920 regulating the operation of motor vehicles on public highways included and controlled electric street cars, the trial judge instructed the jury that it was the duty of appellee Everett as he approached Twenty-eighth street to yield the right of way to the street car at the intersection of its path with his path, unless as and when the said Everett took his automobile into the intersection of Twenty-eighth street the street car was then further from the point of said intersection of their paths than was the automobile which plaintiff was driving. Appellee Everett insists that this instruction was erroneous. The motor vehicles act of 1920 does not control in cases like this one. That act is now a part of Kentucky Statutes, beginning with section 2739g-l. Its first section reads:

“Whenever and wherever the word ‘vehicle’ is used in this act it shall include all agencies for the transportation of persons or property over and upon the public highway of this Commonwealth, and all vehicles passing over or upon said highways, excepting road rollers and such vehicles as travel exclusively on rails; and whenever and wherever the word ‘automobile’ is used it shall include all vehicles that are propelled otherwise than by muscular power except road rollers and such vehicles as travel exclusively on rails.”

Without going further into the act of 1920, it clearly appears from the first section thereof it was not intended and does not include street cars or vehicles that travel exclusively on rails. Louisville Railway Company v. Birdwell, 189 Ky. 422. The trial court, therefore, erred in giving instructions on the first trial requiring the appellee Everett while driving his car to yield the right of way to the street car at the intersection of their paths.

At the time of the accident there was in force in the city of Louisville an ordinance reading:

“All vehicles and street cars going in an easternly and westernly direction shall have the right of way over all the vehicles or street cars going in a northernly or southernly direction. ’ ’

As the state law, embracing section 2739g-l, et seq., does not govern the operation of street cars, the ordinance copied above was in full force and effect and controlled where a street car and automobile traveling in different directions entered an intersection at the same time.

Manifestly the trial court erred in its instruction to the jury upon the first trial, and properly set aside that verdict and judgment granting appellee Everett a new trial.

For the reasons indicated the last judgment is affirmed.

Judgment affirmed.  