C., N.O. & T.P.R. Co. v. Howe's Admr.
| Decision Date | 10 March 1925 |
| Court | Kentucky Court of Appeals |
| Parties | C., N.O. & T.P. Railway Company v. Howe's Administrator. |
Appeal from Grant Circuit Court.
F.A. HARRISON for appellant.
W.A. PRICE, S.D. ROUSE and OVERTON S. HOGAN for appellee.
Cecil Howe, who was eighteen years of age, while driving a Ford truck on October 5, 1922, about 9:00 a.m. was struck and killed at what is known as the Oder crossing in Grant county, by a fast running passenger train of the C., N.O. & T.P. Railway Company. This action was brought to recover for his death, resulting in a verdict and judgment for the plaintiff for $8,000.00. The defendant appeals.
The railroad company has a double track. The Oder crossing is where these tracks cross the state highway leading from Lexington to Cincinnati. The situation is roughly shown in the following map:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Two witnesses, who were riding in a buggy, saw the smoke of the approaching train and stopped at the point 3. While they were sitting there waiting for the train to pass Howe came down the pike indicated by the figure X, and at figure 1 turned to the right, going down to the crossing at 2, running about twelve miles an hour and reaching it just as the train reached it. The train was running about forty-five miles an hour, going north. The proof is uncontradicted that the train whistled for a road crossing a few feet south of the letter S and that it also whistled for the crossing at the figure 2, but the proof for the defendant tends to show that this whistle was not blown as far back as the statute requires. The engineer saw the truck approaching the crossing and began giving short alarm whistles. But the proof is conflicting as to how far back this was done. The plaintiff introduced a number of witnesses, who were in a position to hear, and testified that they did not hear the bell ringing. On the other hand the proof for the company is that the automatic bell was ringing from the time the train whistled for the first crossing. There was nothing to obstruct the view of the approaching train. Howe could have seen the train if he had looked, but the proof shows that the side of the cover of the truck prevented him from seeing after he made the turn at 1, unless he got up off his seat and looked behind him.
It is earnestly insisted that on these facts the court should have instructed the jury peremptorily to find for the defendant. It is true the proof shows that Howe did not stop and look and listen after he turned toward the railroad track at 1 and that he was then 281 feet from the crossing. But there being proof tending to show that the...
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