Coil's Adm'x v. Chicago, St. L. & N.O.R. Co.

• Decision Date: 10 December 1929
• Citation: 22 S.W.2d 428,232 Ky. 33
• Parties: COIL'S ADM'X v. CHICAGO, ST. L. & N. O. R. CO. et al.
• Court: Kentucky Court of Appeals

22 S.W.2d 428

232 Ky. 33

COIL'S ADM'X v. CHICAGO, ST. L. & N. O. R. CO. et al.

Court of Appeals of Kentucky

December 10, 1929

Appeal from Circuit Court, Hopkins County.

Action by Frank E. Coil's administratrix against the Chicago St. Louis & New Orleans Railroad Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

C. J Waddill and J. A. Jonson, both of Madisonville, for appellant.

Gordon Gordon & Moore, of Madisonville, for appellees.

HOBSON C.

The Dixie Bee Line concrete highway runs from Madisonville to Earlington. About halfway between the two towns a spur railroad track, connecting with the Hart coal mines, crosses the highway at grade. The Madisonville Country Club is located about half a mile beyond this spur track crossing. Frank E. Coil was a member of the country club. On Saturday April 30, 1927, they had a supper at the club, and the party broke up about 12 o'clock. Coil started to Madisonville in his car. As he approached the track, he ran through a cut which concealed a view of the railroad, and then he came over a hill close to the railroad crossing. A train was on the track, but he did not see it until he was very close to it. He then undertook to turn to the right, and ran into the train; his car was smashed up, and he was killed. This action was brought against the railroad company to recover for his death. The jury, to whom the case was submitted, found for the defendant. The plaintiff appeals.

The plaintiff proved by one witness that he had approached this crossing; his engine got out of fix and he had stopped just before reaching the crossing; that the train was on the crossing then and was moving east; he pulled off the highway into a driveway, and, while he was there, Coil passed in his car, and ran into the train; the first he knew after Coil passed was when he hit the train.

On the other hand, the defendant showed by the conductor and other trainmen that, when it became necessary to back the cars over the highway, the conductor sent a brakeman to the highway, who stood in the crossing to give every one notice, and remained there until the cars came past. When the cars passed, he got upon the second car, which was standing over the road, with his lantern, and, while standing there, he heard Coil coming. He hollered, but Coil, who was running very rapidly, did not hear him, and ran into the car. The engine had cut loose from the cars for a few minutes to put one of the cars in the train on a side track, and about the time that Coil hit the train the engine came back and coupled onto these cars. It probably began to move them out just as Coil hit, for the tracks of Coil's car showed that he hit east of the highway, and his body was found on the highway with his feet in the car. The whole thing happened in a few minutes, and, under all the evidence, it is clear that Coil ran into the car standing across the highway. The court gave the jury these instructions:

"The court instructs the jury that if they shall believe from the evidence in this case that the defendants negligently failed to give reasonable signals or warnings to notify the public using the highway mentioned in the evidence of the presence of a train of cars across said highway on the occasion of F. E. Coil's injury, and that F. E. Coil was using ordinary care at the time in driving his automobile on said highway, then you should find your verdict for the plaintiff; but unless you do so believe you should find your verdict for defendants.

The court instructs the jury that by the term 'negligence' as used in these instructions, is meant the failure to exercise that degree of care which an ordinarily prudent man would usually exercise under the same or similar circumstances.

Ordinary care is such care as an ordinarily prudent person would usually exercise under the same or similar circumstances.

The court instructs the jury although the jury may believe...