Rupard v. Chesapeake & O.R. Co.

• Decision Date: 21 February 1889
• Citation: 88 Ky. 280,11 S.W. 70
• Parties: RUPARD et ux. v. CHESAPEAKE & O. R. Co.
• Court: Kentucky Court of Appeals

11 S.W. 70

88 Ky. 280

RUPARD et ux. v. CHESAPEAKE & O. R. Co.

Court of Appeals of Kentucky.

February 21, 1889

Appeal from circuit court, Clark county; J. R. MORTON, Judge.

This was an action by Isaac T. Rupard and his wife against the Chesapeake & Ohio Railroad Company, to recover damages for personal injuries sustained by the female plaintiff by reason of defendant's alleged carelessness and negligence in operating one of its trains. Plaintiffs appeal from a judgment for defendant.

Leland Hathaway and D. W. Lindsey, for appellants.

J. M Benton and Breckinridge & Shelby, for appellee.

BENNETT J.

The appellant Patsey E. Rupard, wife of the appellant Isaac T Rupard, while riding on horseback on the public road at a point where the appellee's road crosses said road on a trestle, high enough from the ground to admit passage thereunder on the public road by persons on horseback or in vehicles, was thrown from her horse by his becoming frightened by the noise of the train as it passed over the trestle above him. The appellant was seriously injured by the fall. It is contended that the injury would not have happened but for the negligence of appellee in not giving timely notice of its approach to the crossing by blowing its alarm whistle or by ringing its bell, so as to warn the appellant of its approach to the crossing, by which she could and would have kept at a safe distance from the crossing until the train passed it, whereby the injury would have been avoided. Upon the conclusion of the appellant's evidence, the lower court instructed the jury peremptorily to find for the appellee, which the jury did. The appellee's contention is that, where its railroad crosses the public road on a trestle, it does not in common with the traveler have any privilege in or use of the public road itself; that its road and the public road, though near and adjacent to each other are distinct and separate. The former has no rights in the public road, and the traveler has no rights in the track for the purposes of crossing it. Therefore the same duties are not imposed upon the appellee that are imposed upon it when it passes over the public road itself in common with the traveler. Consequently it has a right to run its train on a trestle across a public road at its common or any rate of speed, accompanied by the usual noise attendant upon the running of a train, and it is not bound as a matter of law to give any warning of its approach to the crossing. In support of the foregoing views, the case of Favor v. Railroad Corp., 114 Mass. 350, is relied on. We cannot agree to this contention. While it is true that the appellee's train does not run on the road itself in common with the traveler, yet it is not true that the public road is not used by the appellee and the traveler in common. It (the public road) supports the appellee's trestle, over which its train passes, and the traveler has a right to pass under the track on the public highway. But for his-right of passage on the public highway he would commit a trespass by passing under the track on the trestles. The public road, by being trestled...