Wright v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 25 February 1893
• Parties: WRIGHT v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Kentucky Court of Appeals

21 S.W. 581

94 Ky. 114

WRIGHT v. CINCINNATI, N. O. & T. P. RY. CO.

Court of Appeals of Kentucky.

February 25, 1893

Appeal from circuit court, Lincoln county.

To be officially reported.

Action by William B. Wright against the Cincinnati, New Orleans &amp Texas Pacific Railway Company for personal injuries. Judgment for defendant. Plaintiff appeals. Reversed.

W. G Welch and M. C. Sanfley, for appellant.

C. B Simrall and J. W. Alcorn, for appellee.

PRYOR J.

In the month of July of the year 1889, the appellant, in company with a friend, was in his buggy, on his way to the Danville fair; and, in crossing the railway track of the appellee, his buggy was struck by a passing train, that demolished it throwing appellant to the ground, and seriously injuring him. He instituted this action against the railway company, alleging that his injuries resulted from the negligence of its employes, and upon the trial in the court below the jury was instructed to find for the defendant; and this is the error complained of on the present appeal. At a former trial of this case a verdict and judgment were rendered for the present appellant for $1,000; and, that sum being within the jurisdiction of the superior court, an appeal was taken to that court, and the judgment reversed, upon an error committed by the trial court, in requiring the defendant to elect whether it would rely on the general denial of any neglect as a defense to the action, or on its plea of contributory neglect on the part of the plaintiff. The superior court held that the pleas were not inconsistent, and that both defenses could be relied on, which we think was proper. On the return of the case, a nonsuit having been ordered, and the sum claimed as damages being within the jurisdiction of this court, the case is now heard.

It seems that the turnpike and track of the railroad run parallel for some distance; and at or near the point at which appellant started on his journey is a small village, called Moreland, and about 1 1/4 miles of Moreland is another small village, called Milledgeville. The railway track crosses the turnpike twice between these villages. Moreland is sought of Milledgeville, and the appellant was traveling north when the train struck him. Starting, then, from Moreland, when you get eight or nine hundred yards from that town the track of the railway crosses the turnpike; and about seven or eight hundred yards from this first crossing the railway track again crosses the turnpike, about three or four hundred yards of the village of Milledgeville. It is a level country, and the track of the road is in plain view for over a mile from the last crossing, back towards Moreland, whether on the turnpike or the railway, until you get within about 90 feet of the second crossing, where the accident happened. For this 90 feet there is a side cut in the turnpike that obstructs the view south, towards Moreland. The train that did the injury was going north, in the same direction the plaintiff was traveling. The testimony shows that after leaving Moreland, and when approaching the first crossing, the appellant looked back to see if there was a train behind him and, seeing none, passed the first crossing safely. In approaching the second crossing, and when within 200 yards of it, he looked back again, and there was no train; and again, when within 75 or 100 yards of the second crossing, he looked again, and saw no train, and then drove onto the track, without looking any more,-traveling, as we conjecture, at the rate of 6 or 7 miles an hour,-and as soon as his buggy was on the track the train struck it. The train was past due, and was running at a rapid rate of speed to make up for lost time, and must have been going at the rate of 60 miles an hour, or at a greater speed. If the distance from where the last look was made is only 75 or 100 yards from the crossing, the buggy could have been driven and passed the crossing before the train could have reached the crossing, if going at the rate of 50 miles an hour; for, if the testimony of the plaintiff and his friend is to be believed, there was no train to be seen at Moreland, or near that village, when the last attempt was made to see if there was danger. It is in proof that the appellant knew the time the train usually passed, and whether or not he had been informed that it was behind does not appear. It is also shown that no signal was given of the approach of the train. This...