at a point about 14 or 15 feet from Pearl street, and on the bridge, the car struck a guard rail on the west edge of the driveway, which caused the female plaintiff to be thrown through the wind shield, resulting in injuries to her. These are two actions, one by the wife and the other by the husband, for damages resulting from that impact with the guard rail, and, the negligence charged in each action being the same, they were tried together in the lower court, and a verdict and judgment for each plaintiff resulted-for the female plaintiff $5,000, and for the male plaintiff $1,850, $100 of which latter judgment was remitted on the record. On each side of the driveway maintained on the bridge for vehicular traffic there was a street car track over which such cars formerly ran to and from Newport and Cincinnati, and the appellant had constructed along the outside of the vehicular driveway on each side, a few feet from the car tracks, a guard rail attached to the floor of the bridge and designed to protect the vehicular roadway from interference from the street cars in the event they should leave the tracks, and also to prevent vehicles from going on the street car tracks. This guard rail consisted of a timber about 14 inches square, running along the bridge for some distance on each side, and on the Cincinnati side extended to within 14 or 15 feet of the Pearl street approach to the bridge. The guard rail where it terminated was square, and stood up at the western side of the roadway approximately 14 inches, and it was with this guard rail that the machine in which the appellees were riding came in contact. The charge of negligence in each petition is that the maintaining of the guard rail or timber in the manner set forth "rendered said driveway and bridge at said point unsafe and dangerous for vehicular traffic, if reasonably sufficient light were not maintained at night at said place to warn such traff the presence of same." It is alleged that defendant upon th casion in question had "neglige failed to place or have any ligh any time about said bridge in vicinity of said timber to suffic ly light the same, and thereby v traffic of the presence of same" that defendant and its servants agents knew or could have know the same in time to have prov sufficient lights at or about the of the timber, and that plaint without any warning, and beca of the darkness of said bridge the vicinity of the timber, and cause the same was insufficie lighted, were caused to run the a mobile upon and against the en the timber. The answer denied in the 1 paragraph the material allegati of the petition, and in a sec paragraph affirmatively pleaded facts showing the necessity for guard rail at the point indica and further affirmatively alle that defendant maintained an e tric light of 500 candle power in middle of the vehicular roadway feet south of the point of the a dent, and that the city of Cincinn maintained four electric lamps each of 600 candle power, one the southwest corner of Pearl a Butler streets, 69 feet from point of the accident, one at northwest corner of Pearl and B ler streets, 86 feet from the po of the accident, one at the no side of Pearl street opposite east side of the bridge approach, feet from the timber guard, and at the east side of the bridge proach, 49 feet from the tim guard, and that each and all the lamps were lighted and bu ing at the time complained of by plaintiffs, and furnished suffici light for persons approaching s bridge to see said timber guard a to warn them of the presence of same at a sufficient distance to av running into it. In a third paragraph defenda affirmatively set up the statute (Ky. - 284 S. W. 1097.) ate of Ohio requiring lights tor vehicles, and in the fourth raph pleads contributory negarly the petition only charges ence in one respect, and that e failure to provide adequate upon that portion of the where the guard rail was lod by reason of which the plainscar collided with it; and the ground for reversal is that apint owed no duty to light the e for night travel, and that lore the demurrers to the peshould have been sustained. The petition does not proceed upthe theory that it was appellant's have located a light upon the rail or in the immediate viof the guard rail, as in the of a temporary obstruction of a it street at night, but is based the idea that it was the duty appellant to have its structure so ed in that vicinity as to enable atrons who paid for the priviof passing over its bridge to see a dark night the nature of this struction on the western edge of driveway, for it requires no etch of imagination to underand that such an obstruction upon driveway of a bridge, standing right for 14 inches and fastened the floor of the bridge, would alst of necessity bring about sericonsequences if a motor vehicle e in contact with it even at a moderate speed. for public travel. In this case the The direct question whether the er of a toll bridge operated for it, and who invites the public at Evidencejudicial notice bridge. light. sections of America are necessarily times during the day and night safe condition for the character of travel they invite over them. e its structure for its own prigain, is required upon dark s to keep the same sufficiently ed for public traffic, has never passed upon in this state. Strangely enough, the authoriupon the direct question are although they are practically mited in number upon the genproposition that it is the duty the operator of such bridge to ercise ordinary care to keep the e in a reasonably safe condition Obviously a bridge company which charges the public for the use of its structure, and which invites its use during the nighttime, should during such time furnish adequate artificial light to enable the public to so use its structure with reasonable safety. Such duty is embraced within the general duty imposed by law to keep the same in reasonably safe condition for travel; for, unless the traveler is supplied with such light as enables him to evade obstructions, or other dangers, including other vehicles or passengers that may then be upon the structure, then the duty of maintaining the bridge in reasonably safe condition for public travel during the nighttime has not been complied with. One of the early cases on the subject in America was that of Com. v. Central Bridge Corp. 12 Cush. 242. There the corporation was charged in its charter with maintaining its toll bridge at all times in good, safe, and passable repair, and the court held that the question whether the company had failed to suitably light its bridge at night so as to render it unsafe was properly submitted to the jury. It is true in that case there was a covered bridge, which probably emphasized the necessity for lights at night; but the case is conclusive of the general proposition that a toll bridge company, charged with the general duty of keeping its structure in reasonably safe condition for travel, must keep the same adequately lighted at night. The charter provision in that case imposed upon the bridge company no greater duty than the general rule of common law imposes when it requires such company to maintain its structure in reasonably safe condition for public travel; in each case there is imposed a duty to the traveling public. In the English case of Parnaby v. Lancaster Canal Co. 11 Ad. & El. 223, 113 Eng. Reprint, 400, the company had constructed and was operating a canal and a boat was sunk therein; the obstruction was neither promptly removed, nor were lights or signals displayed by the company to indicate its presence. It was a toll canal, and another boat while navigating the same ran into the obstruction because of the failure to have lights or signals, and the court in holding the company liable said: "The company made the canal for their profit, and opened it to the public upon the payment of tolls to the company; and the common law, in such a case, imposes a duty upon the proprietors, not perhaps to repair the canal, or absolutely to free it from obstructions, but to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate without danger to their lives or property." Other authorities to the same effect are Washington, C. & A. Turnp. Co. v. Case, 80 Md. 36, 30 Atl. 571; Stephani v. Manitowoc, 89 Wis. 467, 62 N. W. 176; Manley v. St. Helens Canal & R. Co. 2 Hurlst & N. 840, 157 Eng. Reprint, 346; Chicago v. Powers, 42 Ill. 169, 89 Am. Am. Dec. 418; Conowingo Bridge Co. v. Hedrick, 95 Md. 669, 53 Atl. 430; 9 C. J. pp. 475, 478; 4 R. C. L. pp. 208, 219; Frankfort Bridge Co. v. Williams, 9 Dana, 403, 35 Am. Dec. 155. We have no doubt that under the principle announced in these authorities appellant owed the duty to exercise ordinary care to so light its whole structure at nighttime as to provide a reasonably safe means of travel thereon to the public, and especially should such a duty be imposed under modern conditions when such structures, in thickly populated communities, are often swarmed during the nighttime with motor car traffic. But it is said for appellant that, even if it owed the duty, the bridge was in fact adequately lighted as For the shown by the evidence. reason that there must be another trial of these cases, we will not go into the details of the evidence on this subject, but content ourselves by saying that the evidence for the plaintiff on this issue was, to say the least, of such potency and probative force as to authorize its submission to the jury. It is likewise urged for appellant that the contributory negligence of appellees was such as that defendant was entitled to a directed ver dict. Generally speaking, the C gence. (Ky., 284 S. W. 1097.) is one for the jury, but, in cases trial to introduce evidence of other accidents happening at the same place, and of this serious complaint is made. The trial court admonished the jury that such evidence was to be considered only for the purpose of throwing light on the question of knowledge of defendant as to the condition at the time of the accident. Accidents may and do happen frequently in unaccountable ways, and the facts and circumstances in any two of them are rarely identical, or approximately so; the facts and circumstances leading up to one accident at the same place as another can rarely furnish any light upon an investigation of what caused the other accident. The general rule therefore seems to be that evidence of a Evidence-preprevious accident vious accidentat the same place is incompetent upon the investigation of the cause of a subsequent one. Brucker v. Gainesboro Teleph. Co. 125 Ky. 92, 100 S. W. 240; Hughes v. General Electric Light & P. Co. 107 Ky. 485, 54 S. W. 723; Louisville Water Co. v. Weis, 25 Ky. L. Rep. 808, 76 S. W. 356; Jeffersonville, M. & I. R. Co. v. Esterle, 13 Bush 678; Louisville, & N. R. Co. v. Reutlinger, 9 Ky. L. Rep. 814. admissibility. The burden of complaint on this score is that the Ohio statute required the appellees to have at least two lighted lamps of equal candle power upon the front of their machine, and such as to enable the occupants to see an object ahead on the highway for at least 200 feet, when the machine is operated during the nighttime. The appellee Howard M. Loesch in his evidence stated that the lights on his machine at the time of the injury lighted the highway ahead of him only 75 or 100 feet, and it is urged that, as he was thus shown by his own admission to have been violating the statute of Ohio where the injury occurred, he was guilty of contributory negligence as a matter of law, and should not be permitted to recover. The evidence, however, shows that, at the time he turned his machine from Pearl street into the bridge entrance, he was not over 50 or 60 feet from the end of It is true this court in the cases the guard rail where the collision of City of Covington v. Visse, 158 occurred, and obviously therefore Ky. 134, 164 S. W. 332, and Lebhis lights, while not complying with anon v. Graves, 178 Ky. 749, the statute, were sufficient to have indicated this structure if the L.R.A.1918B, 1016, 199 S. W. 1064, each of which involved an investigabridge itself had been sufficiently tion whether a sidewalk for pedeslighted. Not only so, there is evitrians was unsafe by reason either dence tending to show that, as his machine entered upon the structure of the slippery condition of the sideat the intersection with Pearl street, walk in the one, or the projection of the lights from his machine, bea water meter onto the sidewalk in the other, it was held that evidence cause of the elevation, shone above of similar accidents theretofore by the guard rail, whereby they were ineffectual in disclosing its location. pedestrians at such places on the sidewalk was competent. But those We have no difficases are not similar to this, for as culty in holding, un- a matter of common knowledge we state of know that pedestrians in walking on a sidewalk proceed ordinarily at about the same Bridges-ques- respect to automobile lights. the record, that the question of contributory negligence was one for the jury. -judicial notice accidents in use of sidewalk. speed and in the same manner, and that therefore an accident to one at the same place and caused by the same thing may be evidence of the danger at that point. In this case we have the single question of whether the bridge upon the night involved was adequately lighted for public travel. Therefore, in the -previous accident on bridge. absence of evidence that a previous accident had happened at the same place and practically under similar circumstances and conditions, the evidence was improperly admitted. The fundamental objection to permitting such evidence is that it opens up collateral questions upon which each party would be permitted to introduce testimony, and would therefore make trials practically interminable. There were likewise permitted to be introduced for appellees the statements of witnesses to the effect that the lights on appellees' automobile conformed to the requirements of the Ohio law, although such witnesses either ad -statement as to compliance with law. mitted they did not know the requirements of that law, or disclosed a want of knowledge on the subject. Clearly such evidence was incompetent and should have been confined to the nature of the lights on appellees' car and what light they gave and how far it shone. In addition to the errors in the admission of evidence above pointed out, we are impelled to the conclusion that in at least one respect the first instruction given by the court was erroneous. That instruction told the jury that it was the duty of defendant at the time and place of the accident to use ordinary care to keep the bridge and its approach in a reasonably safe condition for travel, "and to use ordinary care to protect vehicular traffic using said bridge at said place at nighttime, by giving such notice, by the use of lights or other means as was reasonably sufficient to give timely warning to the traveling public of the presence of said timber guard referred to." The sufficiency of the light at and near the timber guard to disclose its presence to the traveling public at night was the only negligence complained of; there was no complaint that defendant should have used any other means, such as the placing of a guard at that point, to notify the traveling public of the existence of the timber guard, and we are impelled to the conclusion that the insertion of the words, "or "or other Appeal-error means," was not in instruction. only erroneous, but prejudicial to appellant's substantial rights. That such an instruction might have been misleading to the jury is obvious, for they might have assumed under that language it was the duty of the defendant to have had posted at or near the timber guards an employee to especially warn and notify each traveler of the existence of that timber guard, or they might have considered it to be the duty of defendant to use other means of an undefined nature for the furnishing of protection. In the submission of this issue the one act of negligence as alleged in failing to adequately have the bridge lighted was the only one that should have been submitted. Because, therefore, of the error in the first instruction, and of the admission of the incompetent evidence referred to, the demands of justice require that a new trial should be had. The question of excessive damages is expressly reserved. The judgments are each reversed, with directions to grant appellant a new trial, and for further proceedings consistent herewith. |