NATIONAL UNION FIRE INS. CO. v. (Court of Appeals of Kentucky. June 12, 1925.) 1. Insurance 495(1)-Clause of policy limiting recovery held to apply to containers of whisky insured. Where insurance policy described property. covered as whisky in barrels and packages, including barrels and packages, and provided that limit of recovery in event of loss to property insured should not exceed $1.50 per gallon, containers of whisky were included within limit of recovery. 2. Insurance 146(3)-Ambiguous phraseology or uncertainty of interpretation in contract is generally determined against company which prepared and used language. Ambiguous phraseology or uncertainty of interpretation in insurance contract is generally determined against company which prepared and used language. 3. Insurance 629(1)-Demurrer to item of petition for loss of cases containing whisky should have been sustained. In action on insurance policy covering whisky in barrels and packages, including barrels and packages, and limiting recovery for loss of its property insured not to exceed $1.50 per gallon, where petition alleged right of recovery on liquor in one item, and in second item, for loss of packages containing it, demurrer to petition as to second item should have been sustained. Appeal from Circuit Court, Kenton County, Common Law and Equity Division. Action by the Edgewood Company against the National Union Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions. R. C. Simmons, of Covington, and Hite H. Huffaker, of Louisville, for appellant. A. E. Stricklett, of Covington, for appellee. a separate contract of indemnity for the 450 gallons of whisky and for the 150 packages or cases in which it was contained, declared on two items, to wit, 450 gallons of whisky at $1.50 per gallon, aggregating $675, and the 150 cases or packages in which it was placed at $1,925; the two items aggregating $2,600, the total amount of insurance fixed in the contract. The defendant demurred to so much of the petition as asserted a right of recovery for the second-named item, and moved to strike therefrom so much as relied upon a recovery for that item, which demurrer and motion were overruled. In its answer as amended the defendant practically admitted liability for the 450 gallons of whisky at $1.50 per gallon, and alleged that under the terms of the policy the limit of recovery was $1.50 per gallon, which limitation applied, not only to the whisky itself, but to the containers in which the whisky was placed at the time of the insurance, and that its total liability therefore was only $675. [1] The policy provided that in consideration of the payment of the premium appellant insured for the term of one year"against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $2.600 to the following described property while located and contained as described herein, and not elsewhere, to wit, on whisky in barrels and packages, including barrels and packages containing same. * It is understood and agreed that the limit of recovery in the event of loss to the property insured shall not exceed $1.50 per gallon." The only question we deem it necessary to consider is whether the limitation upon the amount of recovery in the event of loss applies to the commercial package alone in which the whisky was contained-three gallons in each case or whether from the language used it was intended that the cases, bottles, wrappings, etc., in which the whisky was incased were likewise insured in addition to the whisky itself. It is true that by the language of the policy, not only the whisky, but the barrels and packages containing the same, were insured; but, when it came to limiting the amount of recovery in the event of loss, the limitation is upon the property insured. Keeping in mind that at the time the pol TURNER, C. Appellee in August, 1920, was the owner of 450 gallons of whisky, already bottled and placed in cases of three gallons each, and located at one of the warehouses of the Cedar Brook Distillery in Anderson county. In August, 1920, shortly after the purchase of this whisky, appellant insurance company issued to appellee a policy was issued the whisky was in cases, we icy of insurance thereon, the correct interpretation of which is the subject of this litigation. The 450 gallons of whisky in the packages as it was when insured was destroyed by fire in September, 1920, and the parties being unable to agree upon the amount of indemnity fixed by the policy, this suit followed. The appellee in its petition, conceiving that under the terms of the policy there was can see no practical, sound, or sensible interpretation of this limitation upon recovery, except that it necessarily meant, and must have been understood by the parties at the time to mean, that the commercial packages containing this quantity of whisky were embraced within the limitation, and that the purpose was to limit the amount of the recovery as fixed in the policy without ref-, erence to the value of the material used in (273 S.W.) preparing the whisky for the market. The measure fixed in the limitation as "gallons" was only a convenient and practical way of fixing the limit of recovery in the event of the loss of the commercial packages and their contents. Under the language of the policy itself, the limitation is upon the property insured, and that embraces, not only the whisky itself, but the materials used in placing it in the commercial packages. Not only so, we know as a matter of practical knowledge that the whisky itself was the primary thing that was intended to be insured, and the thing about which the parties were primarily contracting. SO ing the 450 gallons of whisky, measured by the number of gallons. [3] The court should have sustained the demurrer to the petition as to the second item asserted therein, and upon the pleadings as a whole should have directed a judgment for the plaintiff for $675. The judgment is reversed, with directions to grant appellant a new trial, and for further proceedings consistent herewith. WESTERN COLLIERIES CO. v. RHYE. (Court of Appeals of Kentucky. June 12, 1925.) . Railroads 350(31)-Contributory negligence of automobile driver held for jury. Appeal and error 1064(1)—Failure to specify to jury what signals should have been given by train, not prejudicial. In the light of sound reason, and in view of the ordinary dealings between men, it cannot be assumed in view of this language that they intended other than to insure the In action for injuries at railroad crossing, commercial packages containing the whisky, that plaintiff in sudden emergency inadvertently and in limiting the liability only used the threw out gear, stalling his car on track, held measure of "gallons" because the chief thing not conclusive contributory negligence proximately contributing to injury, and requiring diinsured could be best measured in that way. rected verdict, in view of testimony of plainNo other measure could have more accurate-tiff that he could not have crossed track before ly described this article of commerce car was struck in any event. packed and incased ready for distribution. It was the entity that was insured-that 2. is, the whisky in the containers, including the latter and when the limitation upon liaIn action for injuries at railroad crossing, bility was fixed, the chief article insured be- where company's engine was not equipped with ing a fluid which might be most conveniently | bell, and it was not claimed that whistle was measured in "gallons," that measurement blown within 250 yards of crossing, instructions was naturally used in the limitation, but it requiring company to give such signals of aphad reference to and included, not only the proach as were reasonably necessary, and not fluid itself, but the packed article of com- specifying what signals should have been given, held not prejudicial, even if company was within merce, including the containers. requirements of Ky. St. § 786, requiring specific signals, since it confessedly did not give them. 3. Railroads 351 (9)-Duty of private railroad to give crossing signals held sufficiently defined. The language of the policy upon which appellee relies, "whisky in barrels and packages including the barrels and packages containing same," upon its face treats the two as an entity, and the one as inclusive of the other, and it is hardly possible when the limitation upon liability was fixed that it was not understood as measuring the whole liability in "gallons" as inclusive of the packages. [2] It is true that any ambiguous phraseology or uncertainty of interpretation in insurance contracts will generally be determined against the company who prepared and used that language, but we are unable to see in the language involved here, considering the nature of the commercial article involved, that there could be any uncertainty in the correct interpretation. Even if coal company operating private railroad was not within Ky. St. § 786, requiring that specific signals be given at railroad crossing, duties of company, in exercise of ordinary care in operation of its trains did not need more specific definition than duty of ordinary care by giving such signals of trains' approach as were reasonably necessary for the purpose. Appeal from Circuit Court, Hopkins County. Action by Archie Rhye against the Western Collieries Company. Judgment for plaintiff, and defendant appeals. Affirmed. C. J. Waddill, of Madisonville, and Jno. T. Edmunds, of Hopkinsville, for appellant. Fox & Gordon, of Madisonville, for appellee. Counsel on both sides seem to concede that there is no direct authority or adjudication affecting this question; but, entertaining the views above expressed, we have found no CLARKE, J. Appellant operates a "Dinkey" difficulty in reaching the conclusion that the limitation, although measured in "gallons" coal train between its coal mines and its Its railroad track, which is about and by its terms, including the packages in tipple. which the whisky was incased, there can be 11⁄2 miles in length, crosses a dirt road midno recovery except for the packages contain-way between the mine and the tipple. At For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes this crossing the company's coal train struck appellee's automobile, in September, 1923, at about 4 p. m., and, for the resultant injuries to himself and his car, he recovered a judgment of $1,250, from which the company appeals. The grounds urged for reversal are that the court erred in refusing to direct a verdict for the defendant, and in the instructions given. [1] The right to a directed verdict is based upon the claim that the evidence shows without contradiction that the accident would not have happened except for the negligence of plaintiff in throwing his car out of gear and causing it to stop upon the track in front of appellant's train, when the train was so near that it could not be stopped in time to avoid a collision. The trouble with this contention is that, according to the evidence for the plaintiff, he could not have gotten across the track before the train struck his car even if he had not inadvertently thrown it out of gear in an effort to escape from his perilous position. Besides he was acting in an emergency, and it was for the jury to say whether, under all of the circumstances, he failed to exercise such care as an ordinarily prudent person so situated would have exercised, and whether his negligence if any contributed to the accident. We are therefore clearly of the opinion that there is no merit in ap pellant's first contention. The instructions given by the court, over appellant's objection, are criticised for several reasons, but we are unable to find any error prejudicial to the appellant in any of them. They contain a number of inaccuracies, but considered as a whole, are much more favorable to the defendant than to the plaintiff, in that the duty of exercising care commensurate with the increased danger, if the crossing should be believed to be an unusually dangerous one, was placed upon plaintiff and not upon defendant. in the exercise of ordinary care could not have been enumerated, or more specifically defined than was done in the instructions given. Million's Adm'r v. L. & N.. R. Co., 208 Ky. 788, 271 S. W, 1085. Neither were the circumstances such as to require a concrete instruction upon the question of contributory neglect, even if such an instruction had been requested, which was not done. The instruction upon the measure of damages, to both plaintiff and his car, is also criticised, but this instruction, though not technically correct, is not susceptible of a construction prejudicial to appellant's substantial rights. Judgment affirmed. WENER v. POPE. (Court of Appeals of Kentucky. June 12, 1925.) 1. Municipal corporations 706 (6)-Reasonableness of speed of automobile for jury, where there is some evidence. Whether or not speed of automobile was reasonable at time of accident is not a question for jury, unless there is some evidence that it was unreasonable. 2. Evidence 5(2)-Common knowledge that automobile cannot be operated at much less speed than will permit its being stopped within 3 or 4 feet. It is common knowledge that an automobile cannot ordinarily be operated at much, if any, lower rate of speed than such as will permit its being stopped within 3 or 4 feet. 3. Municipal corporations 706 (8)—Evidence held not to warrant instruction on question of speed of automobile, In action for injuries from being struck by automobile, where single witness estimated speed of defendant's automobile at between 8 testified that it was stopped within 3 or 4 feet and 10 miles, while both plaintiff and defendant after accident occurred, there was no evidence that car was being operated at an unreasonable rate of speed, and court did not err in failing to instruct on such question. 4. Municipal corporations 705 (2)—Automobile driver required to sound horn. Under Ky. St. § 2739g28 an automobile driver is required to sound his horn, if necessary to give warning of car's approach to those then using street crossing and in apparent dan ger. [2, 3] The chief criticism of them is, that they required the defendant to exercise ordinary care to prevent injury at the crossing to travelers exercising ordinary care for their own safety by giving such signals of the train's approach as were reasonably necessary for the purpose, instead of specifying what signals should have been given. This, however, even if error, could not have been prejudicial, since defendant's engine was not equipped with a bell, and it is not claimed the whistle was blown except at a whistle board some 250 yards from the crossing. Hence if defendant comes within the requirements of section 786 of the Statutes, it clearly did not give required signals for the crossing, and was confessedly negligent. If, upon the other hand, it is not amena- Appeal from Circuit Court, Jefferson Counble to that section, as is its claim, its duties ty, Common Pleas Branch, First Division. 5. Trial 228(1)-Giving of concrete rather than general instruction on contributory negligence not error. It was not error to give concrete, rather than general, instruction on contributory negligence, even though latter would have been sufficient. (273 S.W.) Action by Louis Wener against E. L. Pope. | the traffic officer, who did not see the acciJudgment for defendant, and plaintiff ap dent, but merely saw the car as it passed him peals. Affirmed. some 25 or 30 feet from the place of the accident, that he "judged" it was going 8 or 10 Grover G. Sales, of Louisville, for appel lant. Robert L. Page and Davies, Page & ing, all of. Louisville, for appellee. miles an hour. We do not consider this es Down-timate, or rather guess, as to the speed of the car at the time of the accident, sufficient for that purpose, in the face of the undisputed fact that the car was actually stopped within 3 or 4 feet. CLARKE, J. This is an action to recover damages for personal injuries resulting from an automobile accident at the southwest corner of Third and Jefferson streets, in the city of Louisville. A trial before a jury resulted in a verdict and judgment for the defendant, and plaintiff appeals. His only complaints are that instructions Nos. 1 and 3 given by the court are prejudicially erroneous. The first instruction reads: "(1) It was the duty of Pope to exercise ordinary care to avoid collision with any person on the street, and that duty included the duties of keeping a lookout and if there was any one in apparent danger from the movement of his car to give reasonable and timely warning by the customary signals. If you believe from the evidence that he failed to observe any one or more of these duties, and thereby caused the collision with the plaintiff, Wener, then you will find for the plaintiff. But, unless you so believe from the evidence, you will find for the defendant, Pope." The criticisms of this instruction are its failure to inform the jury that it was the duty of Pope to run his machine at a reasonable rate of speed, and its qualification of the duty to give signals of his approach by requiring such signals only if there was any one in apparent danger from the movement of his car. [1] While ordinarily it is a question for the jury as to whether or not, under all of the circumstances, the speed of the automobile was reasonable at the time of an accident, this is not true, of course, unless there is some evidence that it was unreasonable. Louisville Railway Co. v. Birdwell, 189 Ky. 424, 224 S. W. 1065. A single witness estimated the speed of the car at the time of the accident at between 8 and 10 miles an hour, while both plaintiff and defendant testified, without contradiction, that it was actually stopped within 3 or 4 feet after the accident occurred. [2, 3] It is matter of common knowledge that an automobile cannot ordinarily be operated at a street crossing, or elsewhere for that matter, at much, if any, lower rate of speed than such as will permit its being stopped within 3 or 4 feet, and to hold that negligence might reasonably be inferred from such a low rate of speed, and an accident attributed thereto, would practically amount to holding that an automobile could not be operated at all without negligence. It follows there was no evidence that the car was being operated at an unreasonable rate of speed, unless supplied by the statement of In support of the other criticism of this instruction,, counsel refers us to the case of Melville v. Rollwage, 171 Ky. 607, 188 S. W. 638, L. R. A. 1917B, 133, which, he insists, hold that the duty to give signals at all street crossings in a city is absolute, even though a traffic officer may be in control of and directing the traffic at the crossing. That case, however, only holds that, under the circumstances therein detailed, it was the duty of the automobilist to sound his horn to give notice of his approach to one rightly upon the crossing and in apparent danger from the It is true that the movement of his car. court there said, referring to the automobilist: automobile by a signal from the officer, but such "He may have been authorized to move his signal did not require or authorize him to move it over the intervening street and the crossing being used by appellee without giving the necessary warning of its movements, or at such speed as to make its collision with her unavoidable." It will be noticed that this did not make the duty to give warning of the automobile's approach absolute, but only to give such warning was necessary to make a collision with the pedestrian avoidable. The facts are then referred to to show that the pedestrian was rightfully upon the crossing, “and all the time in plain view of appellant as he approached in his automobile." It is therefore clear that all the court meant or said, with reference to giving signals of an automobile's approach to a pedestrian upon a crossing in a city where a traffic officer is stationed, was that he should give such warning as was necessary under the circumstances to render a collision avoidable. [4] That case, therefore, instead of sup porting the contention of the appellant, clearly sustains the instruction given by the court in this case, to the extent at least that the duty to give signals is not absolute but dependent upon necessity therefor. But, even if this were not true, the automobile law of the state, particularly as to signals and speed, has been materially changed by the Legislature since that opinion was written, and before this accident occurred. Section 7, subsec. (f) of chapter 90 of the 1920 Acts, now section 2739g28 of the Statutes, reads: "Every automobile and bicycle, when in use on a public highway, shall be equipped with a horn, bell or other device capable of making an abrupt sound sufficiently loud to be heard under all ordinary conditions of traffic, and every person operating an automobile or bicycle shall sound said horn or other sound device whenever necessary as a warning of the approach of such vehicle to pedestrians, or other vehicles, but shall not sound said horn or sound device unnecessarily." This section applies at crossings and else where in cities as well as in the country. United Casket Co. v. Reeves, 206 Ky. 581, 267 S. W. 1108; Caines, etc., v. Wheeler, 207 Ky. 237, 268 S. W. 1098. Hence it was appellent's duty to have sounded his horn only if necessary to give warning of his car's approach to plaintiff or others then using the street crossing and in apparent danger therefrom, as stated in the instruction given. This instruction, however, states that duty somewhat differently from those approved in the Melville Case, supra: Weidner v. Otter, 171 Ky. 167, 188 S. W. 335: Major Taylor & Co. v. Harding, 182 Ky. 236, 206 S. W. 285; and Caines v. Wheeler, supra. The instruction approved in those cases simply required an automobilist to give such signals as were reasonably necessary to avoid a collision with others upon the highway, whereas the instruction in this case imposes the same duty "if there was any one in apparent danger from the movement of his car." We are unable to see any substantial difference in these instructions, since both require the automobilist to keep a lookout, and to give reasonable and timely warnings by the customary signals, which, under the statute, are to be given only for the benefit of those in apparent danger from the movement of the car. There is therefore no error in this instruction. [5] The third instruction reads: "If you believe from the evidence that Pope was observing all the duties incumbent upon him under the first instruction, and that Wener came suddenly in front of his auto, and so close in front of it that Pope could not by the exercise of ordinary care and the use of the means at his command have stopped his car or checked its speed in time to have avoided striking him, then you should find for defendant, Pope." It is not claimed that this is not a correct statement of the law, or that there was no evidence to support it. The criticism is that it was error to refer to the evidence upon which appellee relied to sustain, and which, if believed by the jury, did sustain, his plea of contributory neglect, and not to have given instead the ordinary instruction upon contributory negligence, couched in general language. In other words, the contention is that it is prejudicial error simply to give a concrete rather than a general instruction upon the question of contributory negligence. We are not cited to any case so holding, but to sustain this novel contention reliance is had solely upon the fact that, in Weidner v. Otter, supra, the court, in denying the claim of the defendant that he was entitled to a concrete rather than a general instruction upon the subject, said: "An instruction in general terms is all that is needed to enable a jury of ordinary intelligence * to find whether he [the defendant] has exercised the required degree of care." Even if we concede that the court intended to state this as the rule in all automobile accidents rather than as applicable simply to the facts of that case, there is yet in it no intimation that it would be error, much less prejudicial error, to give a concrete rather than the general instruction upon the subject. Hence we find in that case nothing whatever to support the contention, made here by the plaintiff in the action, that it was prejudicial error to have given a concrete rather than the general instruction upon contributory negligence, even though we might concede that the latter would have been sufficient. Perceiving no error in the record that could have been prejudicial to appellant's substantial rights, the judgment is affirmed. |