Opinion op the court by
JUDGE GUFFY
Reversing.
. The plaintiff, Flynn, now appellant, instituted this action in the Jeffersom Circuit Court, law and equity division, against the defendant, now appellee, to recover judgment for personal injury caused by the defendant’s gross negligence. It is substantially alleged in the petition that in January, 1898, plaintiff was a member of the Salvage Corps-of the city of Louisville, and that, while in the discharge of his duty as a member of said corps, he responded to an alarm of fire, and, while riding in a wagon across the intersection of Third and Jefferson streets, that defendant, its agents and servants, did by their gross negligence cause a street car, known as a “motor car,” propelled by electricity, to run against, and with 'great force and violence to collide with, the wagon in which plaintiff was riding, and thereby throw plaintiff to the pavement, and the bones- of his arm were thereby broken in several places, and was otherwise greatly injured in his body and limbs, and was in consequence of which for a long time confined to his- home, under the care of physicians, and suffered great pain and ■agony, both -mental and physical, and permanent impair[666]*666ment of his1 bodily health, in the sum of |20,000, for which sum he prayed judgment. The first paragraph of the answer may be considered as a traverse of all the allegations •of the petition showing negligence upon the part of the defendant, as well as a denial of the injuries complained of. The second paragraph of the answer pleads contributory •negligence upon the part of the1 plaintiff, which plea of contributory negligence was denied by the reply of the plaintiff. At the conclusion of plaintiff’s testimony the court instructed the jury peremptorily to find for the defendant, which was accordingly done; and, plaintiff’s motion for a new trial having been overruled, he prosecutes this appeal.
The grounds relied on for a new trial are: First, that the court erred in excluding from the jury, and in refusing to allow plaintiff’s witnesses to testify, that the motiorman, after he became aware of the approach of the wagon on which plaintiff was riding, could have stopped the car, by the exercise of ordinary. care; in time to have avoided the .collision; second, that the court erred in instructing the .jury peremptorily to find for the defendant.
It may be that the witness had not, by his testimony, shown that he had any knowledge as to the time in which ■the ear could have been stopped, -and on that account it may be that the court properly rejected the testimony offered. If, however, it had been shown that the witness had any .facilities for knowing how soon or under what conditions the car could have been stopped’, the testimony would’ have been admissible.
It sufficiently appears that the plaintiff in this case was ,a member of the Salvage Corps — a corporation organized by an act of the Legislature of the State — one,' if not the .chief, object of which was to prevent the destruction by fire of the property in the city of Louisville;, and by the act [667]*667of the incorporation it was given the right of way in the streets. It appears that on the evening of the accident an alarm of fire was given from' box 46, at Third and Breckinridge streets, shortly before six o’clock, and that plaintiff,, with other persons, started on one of the salvage wagons for the scene of the fire; and when the wagon reached. Third and Jefferson the car was seen coming down at a rapid rate of speed, and the driver of the salvage wagon, turned and attempted to avoid the street car, and was struck by the car and thrown off onto the pavement, and as a result plaintiff suffered the injuries complained of. The testimony conduces to show that the car was going at a terrible rate of speed- — perhaps twenty miles an hour. There is also evidence -conducing to show that as the street car approached the crossing the motorman was engaged in. conversation with some other- person, and had his head turned from the crossing, and therefore not in a position to' see the approach of the salvage wagon. There is also evidence conducing to show that, if the motorman had had. his face turned towards the crossing, he could have seen, the salvage wagon in time to have so slackened the speed, of Ms car as to have avoided the collision. The evidence also tends to show that the only effort made by the motorman after discovering the danger of plaintiff was to apply the brake, without turning off the electric current or reversing the lever, if, indeed, he could have done so. The contention of appellee seems to be that the salvage wagon was being run at a reckless speed and without proper regard to -the safety of those aboard, or, in other words, that the plaintiff was guilty of contributory negligence, and therefore not entitled to recover. It is true the evidence-shows that the salvage wagon was being run at from ten. to fifteen miles an hour, but it also appears that said wagon. [668]*668by law had the right • of way in the' streets. And it must be remembered that the object for which the Salvage' Corps was organized was to reach the scene of the fire .as rapidly as possible, in order to accomplish the object for which it was created, namely, to prevent the destruction of property by fire. The court below, from the elaborate opinion filed, seem® to have erroneously concluded that plaintiff was guilty of contributory negligence, and was thereby deprived of any right to recover against the defendant, however'negligent it might have been. It is not material for the purposes of this action whether plaintiff would have been responsible to a person injured by the rapid driving of the wagon. The question in this case is whether plaintiff was injured by the negligence of the defendant. In Sullivan’s Adm’r v. Bridge Co., 9 Bush., 90, in discussing the question of contributory negligence, this court said: “It is not every act of contributory negligence that prevents one from maintaining a.n action for an injury received. Such negligence will not prevent the plaintiff from recovering, unless for this negligence the injury would not have occurred, or if the defendant, by the exercise of ordinary care, could have avoided the consequences of plaintiff’s negligence. Saund. Neg. 58.” In Railroad Co. v. Collins, 2 Duv., 114, it is said, quoting from the syllabus: “When, on a question of negligence, the testimony is conflicting, the.jury have a right to decide the character of the negligence. Although the plaintiff, suing for an injury resulting from the gross negligence of the defendant, may have been guilty of negligence, if, nevertheless, the injury might have been avoided by the proper care of the defendant, such co-operating negligence of the plaintiff will not exonerate the defendant.” In Railroad Co. v. McCoy, 81 Ky., 404, quoting from the syllabus, it is said: “If appellee by his own negligence contributed to such an extent [669]*669to produce the injury to himself that but for his negligence it would not have happened, he has no cause of action, unless appellant’s agent,'on managing the train, was guilty of willful neglect, or knew, or could have known by ordinary attention, of the peril in which appellee had placed himself, and, knowing this, failed to observe reasonable care to avoid the injury.” In Railroad Co. v. Lewis (Ky.), 38 S. W., 482, (18 Ky. L.
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Opinion op the court by
JUDGE GUFFY
Reversing.
. The plaintiff, Flynn, now appellant, instituted this action in the Jeffersom Circuit Court, law and equity division, against the defendant, now appellee, to recover judgment for personal injury caused by the defendant’s gross negligence. It is substantially alleged in the petition that in January, 1898, plaintiff was a member of the Salvage Corps-of the city of Louisville, and that, while in the discharge of his duty as a member of said corps, he responded to an alarm of fire, and, while riding in a wagon across the intersection of Third and Jefferson streets, that defendant, its agents and servants, did by their gross negligence cause a street car, known as a “motor car,” propelled by electricity, to run against, and with 'great force and violence to collide with, the wagon in which plaintiff was riding, and thereby throw plaintiff to the pavement, and the bones- of his arm were thereby broken in several places, and was otherwise greatly injured in his body and limbs, and was in consequence of which for a long time confined to his- home, under the care of physicians, and suffered great pain and ■agony, both -mental and physical, and permanent impair[666]*666ment of his1 bodily health, in the sum of |20,000, for which sum he prayed judgment. The first paragraph of the answer may be considered as a traverse of all the allegations •of the petition showing negligence upon the part of the defendant, as well as a denial of the injuries complained of. The second paragraph of the answer pleads contributory •negligence upon the part of the1 plaintiff, which plea of contributory negligence was denied by the reply of the plaintiff. At the conclusion of plaintiff’s testimony the court instructed the jury peremptorily to find for the defendant, which was accordingly done; and, plaintiff’s motion for a new trial having been overruled, he prosecutes this appeal.
The grounds relied on for a new trial are: First, that the court erred in excluding from the jury, and in refusing to allow plaintiff’s witnesses to testify, that the motiorman, after he became aware of the approach of the wagon on which plaintiff was riding, could have stopped the car, by the exercise of ordinary. care; in time to have avoided the .collision; second, that the court erred in instructing the .jury peremptorily to find for the defendant.
It may be that the witness had not, by his testimony, shown that he had any knowledge as to the time in which ■the ear could have been stopped, -and on that account it may be that the court properly rejected the testimony offered. If, however, it had been shown that the witness had any .facilities for knowing how soon or under what conditions the car could have been stopped’, the testimony would’ have been admissible.
It sufficiently appears that the plaintiff in this case was ,a member of the Salvage Corps — a corporation organized by an act of the Legislature of the State — one,' if not the .chief, object of which was to prevent the destruction by fire of the property in the city of Louisville;, and by the act [667]*667of the incorporation it was given the right of way in the streets. It appears that on the evening of the accident an alarm of fire was given from' box 46, at Third and Breckinridge streets, shortly before six o’clock, and that plaintiff,, with other persons, started on one of the salvage wagons for the scene of the fire; and when the wagon reached. Third and Jefferson the car was seen coming down at a rapid rate of speed, and the driver of the salvage wagon, turned and attempted to avoid the street car, and was struck by the car and thrown off onto the pavement, and as a result plaintiff suffered the injuries complained of. The testimony conduces to show that the car was going at a terrible rate of speed- — perhaps twenty miles an hour. There is also evidence -conducing to show that as the street car approached the crossing the motorman was engaged in. conversation with some other- person, and had his head turned from the crossing, and therefore not in a position to' see the approach of the salvage wagon. There is also evidence conducing to show that, if the motorman had had. his face turned towards the crossing, he could have seen, the salvage wagon in time to have so slackened the speed, of Ms car as to have avoided the collision. The evidence also tends to show that the only effort made by the motorman after discovering the danger of plaintiff was to apply the brake, without turning off the electric current or reversing the lever, if, indeed, he could have done so. The contention of appellee seems to be that the salvage wagon was being run at a reckless speed and without proper regard to -the safety of those aboard, or, in other words, that the plaintiff was guilty of contributory negligence, and therefore not entitled to recover. It is true the evidence-shows that the salvage wagon was being run at from ten. to fifteen miles an hour, but it also appears that said wagon. [668]*668by law had the right • of way in the' streets. And it must be remembered that the object for which the Salvage' Corps was organized was to reach the scene of the fire .as rapidly as possible, in order to accomplish the object for which it was created, namely, to prevent the destruction of property by fire. The court below, from the elaborate opinion filed, seem® to have erroneously concluded that plaintiff was guilty of contributory negligence, and was thereby deprived of any right to recover against the defendant, however'negligent it might have been. It is not material for the purposes of this action whether plaintiff would have been responsible to a person injured by the rapid driving of the wagon. The question in this case is whether plaintiff was injured by the negligence of the defendant. In Sullivan’s Adm’r v. Bridge Co., 9 Bush., 90, in discussing the question of contributory negligence, this court said: “It is not every act of contributory negligence that prevents one from maintaining a.n action for an injury received. Such negligence will not prevent the plaintiff from recovering, unless for this negligence the injury would not have occurred, or if the defendant, by the exercise of ordinary care, could have avoided the consequences of plaintiff’s negligence. Saund. Neg. 58.” In Railroad Co. v. Collins, 2 Duv., 114, it is said, quoting from the syllabus: “When, on a question of negligence, the testimony is conflicting, the.jury have a right to decide the character of the negligence. Although the plaintiff, suing for an injury resulting from the gross negligence of the defendant, may have been guilty of negligence, if, nevertheless, the injury might have been avoided by the proper care of the defendant, such co-operating negligence of the plaintiff will not exonerate the defendant.” In Railroad Co. v. McCoy, 81 Ky., 404, quoting from the syllabus, it is said: “If appellee by his own negligence contributed to such an extent [669]*669to produce the injury to himself that but for his negligence it would not have happened, he has no cause of action, unless appellant’s agent,'on managing the train, was guilty of willful neglect, or knew, or could have known by ordinary attention, of the peril in which appellee had placed himself, and, knowing this, failed to observe reasonable care to avoid the injury.” In Railroad Co. v. Lewis (Ky.), 38 S. W., 482, (18 Ky. L. R., 957) decided December, 1896, quoting from the syllabus, it is said: “After the plaintiff was in peril from the engine which after-wards struck him, it was the duty of those in charge of the engine to see him, the crossing being a public one, and the company is not exonerated if they did' not actually see h,i|m. Therefore the- court properly instructed the jury that, although they might believe plaintiff was guilty of contributory negligence, yet he- could recover if, after -he ‘was in peril from the-engine, those in charge of it could have seen his danger and have prevented his injury by the exercise of ordinary care.’ ” The court in the opinion further said: “Here was a public crossing — a sidewalk in fact, in a large city — -and it was the duty of those in charge of the train to keep a constant lookout for those on! or about the crossing. After the appellee ‘was in' peril from the engine’ it was surely their duty b> see him, and the appellant is not exonerated if they did1 not actually see him. Railroad Co. v. Krey (Ky), 29 S. W., 869; (16 Ky. L. R., 797) Railroad Co. v. Hackman (Ky.), 30 S. W., 407.” (17 Ky. L. R., 81) It may well be doubted whether the court below was authorized to assume, as a matter of law, that the salvage wagon was being run in .a manner or at a rate which could be held to- be negligent. In fact, we do not think, in the absence of proof as to -all the facts and circumstances, that the court was authorized to assume that plaintiff was guilty of any negli[670]*670gence whatever. But, even if it was shown that he was somewhat negligent, yet if the defendant knew, or could by ordinary care have known, of the peril of plaintiff, it was its duty to have used all ordinary care to have prevented the injury complained of; and, if it failed in this respect, plaintiff was 'entitled to recover, even if he was guilty of negligence. For the reasons inidicated, the judgment of the court below is reversed and cause remanded, with directions to award appellant a new trial, and for proceedings consistent herewith.
Also, see Cahill v. Railway Co., 92 Ky., 345, 18 S. W., 2, and 2 Shear. & R. Neg. (5th Ed.), section 484 et. seq. and notes.
Whole court sitting.
Judge DuRelle dissents.