Opinion
Decided May 4, 1926.
Appeal from Boyd Circuit Court.
BROWNING REED for appellant.
JOHN T. DIEDERICH for appellee.
Affirming.
While Miss Gladys Pancake and her sister, Beulah Schilling, were riding in a car driven by Miss Pancake across the tracks of the Chesapeake Ohio Railway Company, at the 24th street intersection in the city of Ashland, a freight tender belonging to the railway company collided with the automobile, carrying it across the street, overturning and wrecking it, and causing the occupants considerable injury. In a suit by her next friend for personal injuries Miss Pancake recovered a judgment for $750.00, and the railway company on this appeal criticises the instructions and insists that the verdict is excessive. The case was tried and heard together with that of Miss Schilling, now Henson, against the same defendant, in which a similar judgment was entered, and the facts in both cases will be set out, though a separate appeal was taken in the latter.
The railway tracks, four in number, run east and west. Twenty-fourth street intersects these at right angles, the grade at the crossing being considerably higher than other parts of the street. Travelling from the south the first track to be crossed is a siding, and then the east bound main, west bound main, and another siding in the order named. A large store building occupies the corner east of the street and south of the railway tracks coming within a few feet of the siding. On the occasion mentioned a box car stood on the siding, one end of it extending several feet west of the store building, obstructing the view of such travelers until they had passed the switch track.
According to their evidence, shortly after dark on the evening of March 10, 1924, plaintiffs started from their homes to purchase some groceries, travelling north on 24th street. When they reached the grade at the railway right of way, Miss Pancake stopped the car and changed the gear, started again and drove slowly across the tracks. Upon reaching the west bound main, the car was struck with great force by the freight tender. It was carrying no light and gave no signals of its approach; they were carried westward across the street and the car thrown against the switch and violently overturned, breaking the door, knocking off the wheels, etc., Miss Schilling was able to climb out through a broken glass in the door. Others arrived in a short time and Miss Pancake was lifted from the car. They were carried to the hospital, their wounds dressed and in about two hours returned to their homes. Neither of them was seriously injured, though both were badly shocked, shaken and bruised. Miss Pancake had a painful cut on her arm which healed shortly and she was able to return to school in about ten days. The wound has left a scar on her arm and the testimony shows that it is developing and growing larger; she was 18 years of age at the time of the accident.
Miss Schilling was 15 years of age; she was injured to about the same extent, having a cut on her lip which left a small scar. Prior to the accident she had been a stout, healthy girl and required no medical attention, but since the accident she has been quite nervous, has been under the care of a physician and suffers from painful menstruation, though the doctor is unable to say whether this was caused by the accident. The physician and hospital bill for both at the time of the accident was $25.00. Their version of the accident is corroborated in part by several witnesses.
The train crew testify that they were backing down the west bound main with two tenders attached to the engine. There was no light on the front tender, but there was a headlight on the one next to the engine, placed upon a raised platform about two and one-half feet high, the rays of which focused above the front tender, casting the light down the track for several blocks; that they were running five or six miles per hour and the bell was being automatically rung. The engineer testifies that he was 47 feet from the end of the front tender; that he could see down the tracks for a distance of several blocks; that plaintiff's car suddenly dashed past and he was unable to tell whether it was struck or not and asked his fireman in reference to that; that the engine was stopped within twelve feet, leaving the front end of the tender about the western edge of the street intersection. Admittedly these were triable issues.
Though criticised, the instructions given were of a character that has been frequently approved by this court under similar facts, and will not be further discussed. It is also urged that the verdict is excessive. As to this it may be said that although not permanent, plaintiff's injuries were painful. She was severely shocked, and received a permanent scar, which is embarrassing, especially so to a young lady. While the verdict is liberal we cannot say that it is so excessive as to strike one at first blush as being the result of passion or prejudice.
Wherefore, perceiving no error, the judgment is affirmed.