Barksdale's Adm'r v. Southern Ry. Co. of Kentucky

• Decision Date: 05 June 1923
• Citation: 251 S.W. 656,199 Ky. 592
• Parties: BARKSDALE'S ADM'R v. SOUTHERN RY. CO. OF KENTUCKY.
• Court: Kentucky Court of Appeals

251 S.W. 656

199 Ky. 592

BARKSDALE'S ADM'R v. SOUTHERN RY. CO. OF KENTUCKY.

Court of Appeals of Kentucky.

June 5, 1923

Appeal from Circuit Court, Shelby County.

Action by Catherine Augusta Barksdale's Administrator against the Southern Railway Company of Kentucky. Judgment for defendant, and plaintiff appeals. Affirmed.

Ernest Woodward, of Louisville, E. B. Beard, of Shelbyville, and Chas. H. Moorman, of Louisville, for appellant.

Humphrey Crawford & Middleton, of Louisville, and Willis & Todd, of Shelbyville, for appellee.

McCANDLESS J.

The Newburg public road crosses the tracks of the Southern Railway Company at grade, about four miles from the city of Louisville, the latter running almost due east and west and the highway north and south.

At that crossing on Sunday afternoon, August 29, 1920, the company's east-bound passenger train collided with the automobile in which Miss Catherine Barksdale was riding, and she was thrown out and instantly killed. For this the administrator of her estate sued the company in the Shelby circuit court for damages. A jury trial resulted in a verdict for the defendant, and he has appealed.

The evidence is that there is a cross-arm signal just north of the intersection, but the tracks are laid on an embankment three feet high, and, while this signal is visible for some distance to one approaching from the south, it is difficult for one so approaching to ascertain which side of the track it is on.

At the time mentioned, to the south of the right of way on both sides of the road the land was covered with timber and undergrowth, and farther back to the west a crop of sugar cane was growing; this formed a dense screen which obstructed the view of an approaching train from a traveler going north until he reached the right of way within 32 feet of the railway track. Generally speaking, this is an ordinary road crossing, but at that time, by reason of other roads in the vicinity being closed, travel had been diverted to this road and there is evidence that it was used by from 200 to 2,000 automobiles daily, though the principal increase had occurred within three or four days previous to that time, and it is doubtful if the railway company had notice of this.

The intestate's escort, Mr. Duvall, was a young army officer, an experienced chauffeur, and the machine in which they were riding was in good condition. They had anticipated traveling another road, and finding it closed, detoured, neither of them having any previous knowledge of this road. They approached from the south, and according to Mr. Duvall, at a distance of about 200 yards from the crossing, saw the cross-arm signal, but could not ascertain its location. He slackened his speed, and they ceased talking and listened. Before reaching the right of way, he reduced his speed to from 10 to 12 miles an hour and had his machine under such control that it could have been stopped within 25 feet. Upon reaching the right of way, he looked for a train, but is not definite as to whether he first looked to the left or right. He never heard any signal at any time, and the first notice he had of the train's approach was when the front wheels of his car reached the railway tracks. He went on, and the engine struck the machine behind where they were sitting. Miss Barksdale was to his right on the front seat, and did not say anything from the time they first saw the crossing sign.

The engineer states that the train was running 45 miles an hour, and he was watching the crossing with his hand on the throttle; he saw the radiator of the car when it emerged upon the right of way, and thought the car under control. When the driver appeared, he looked up at the witness, increased his speed, and went on. When he first saw the machine, the train was within 90 or 100 feet of the intersection. He further states that when the driver came in view and failed to halt he immediately reversed his engine and did everything he could to bring it to a stop, and that it was stopped within 600 or 700 feet.

Both the engineer and fireman state that all the statutory signals were given, and as to whistling they are corroborated by 15 or 20 witnesses living in the vicinity. The fireman did not see the machine until after the injury.

Two ladies had been walking along the railroad and were seated at the side of the public road just north of the intersection. They heard the train signals and saw the approaching machine, and one of them waved for the driver to stop. They both state that the machine approached slowly, and they thought it was going to stop. One of them thinks it did stop, but both say that at a distance of about 30 feet from the track the driver looked at the train and speeded up and tried to cross the track. The engineer testifies thereto, and it is admitted by Duvall that he increased his speed as he crossed the track.

The court gave the usual instructions applying to collisions at crossings, including contributory negligence and the duty applicable to especially dangerous crossings, and telling the jury that the negligence of the driver, if any, was not to be imputed to the plaintiff.

Complaint is made that there was no evidence authorizing a contributory negligence instruction. That if such an instruction was given it should have been given in concrete form, and not in general terms, and that an instruction offered on the "last clear chance" doctrine, and refused by the court, should have...