Burkhead v. Pennsylvania R. Co.

• Decision Date: 13 December 1938
• Citation: 275 Ky. 841
• Parties: Burkhead v. Pennsylvania R. Co.
• Court: United States State Supreme Court — District of Kentucky

275 Ky. 841

Burkhead v. Pennsylvania R. Co.

Court of Appeals of Kentucky. Common Pleas Branch, First Division.

Decided December 13, 1938.

Railroads. — Evidence in action for injuries sustained when automobile which plaintiff was driving collided with freight car

standing on street crossing in city at night was insufficient to take to jury question of railroad company's negligence.

Appeal from Jefferson Circuit Court.

ROBERT E. HOGAN and LUTHER M. ROBERTS for appellant.

CRAWFORD, MIDDLETON, MILNER & SEELBACH for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

The facts in this case are very similar to those in Louisville & Nashville Railroad Company v. Mischel's Adm'x, 272 Ky. 295, 114 S.W. (2d) 115, and the Chesapeake & Ohio Railway Company v. Switzer, 275 Ky. 834, 122 S.W. (2d) 967, this day decided.

The appellant, Everett Burkhead was injured on November 12, 1935, when the automobile which he was driving collided with a freight car standing on a street crossing in the city of Louisville. The collision occurred about 10:30 p.m. Appellant was traveling in a northerly direction along Fifteenth street at a speed, according to his testimony, of about 15 miles an hour. The appellee, Pennsylvania Railroad Company, was switching freight cars on its track which crossed Fifteenth street near Arbegust street, and the crossing, at the time the collision occurred, was occupied by a freight car 40 feet long and 12 feet high. The car had been standing on the crossing only a short time. An overhead street light was located a few feet from the crossing. Fifteenth street was straight for a distance of approximately one-half mile south of the crossing, and was without obstructions. Appellant testified that his car was equipped with adequate brakes and with lights which would reveal objects 200 or 250 feet ahead of it. He had traveled frequently along Fifteenth street for several years, and was thoroughly familiar with the street and crossing. He operated a grocery store in the vicinity, and had passed over the crossing a few minutes earlier on the way to the home of one of his clerks. He sought to recover damages from the appellee in the sum of $5,790, for personal injuries suffered by him and the value of his automobile, which was completely demolished.

At the conclusion of plaintiff's evidence, the court peremptorily instructed the jury to find for the defendant. It is appellant's contention that it was the duty of the railroad company, under the circumstances, to warn travelers on the street of the presence of the freight car on the crossing. In Chesapeake & O.R. Co. v. Switzer supra, we held that ordinarily the presence of a train on a grade crossing is sufficient warning of danger to a traveler on the highway. Appellee argues, however, that appellant was guilty of actionable negligence because it violated two ordinances of the city of Louisville; one requiring the bell of the engine to be rung constantly while the train was moving in the city, and the other requiring all railroads to maintain stop signs visible by day and night at all crossings not protected by gates, watchmen, or some mechanical device.

The purpose of...