C. & O.R. Co. v. Daniel's Administrator

• Citation: 216 Ky. 89
• Parties: Chesapeake & Ohio Railway Company v. Daniel's Administrator
• Decision Date: 12 October 1926
• Court: United States State Supreme Court (Kentucky)

216 Ky. 89

Chesapeake & Ohio Railway Company v. Daniel's Administrator

Court of Appeals of Kentucky.

Decided October 12, 1926.

Railroads — Woman Injured While Climbing Over Couplings of Train Blocking Crossing Held Guilty of Contributory Negligence. — Woman injured by movement of freight train while crossing over

couplings between cars at point 700 feet from regular crossing, crossing being blocked and train being about half a mile long, was a trespasser and guilty of contributory negligence as matter of law.

Appeal from Johnson Circuit Court.

BROWNING & REED and KIRK, KIRK & WELLS for appellant.

FREDERICK HOWES and O.W. CAIN for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

This is an appeal from a judgment for $2,000.00 rendered in an action for the death of Mrs. Brilla Daniel.

The only question for consideration is whether the court erred in refusing to sustain appellant's motion for a peremptory instruction.

The accident occurred at Offutt, a small village in Johnson county. Appellant's tracks extend through the village. Appellant's station and a number of residences are on the east side of the tracks, while the post office and public school, some stores and a few dwellings are on the west side. The town has about 125 inhabitants. South of the station is a public road crossing. Mrs. Daniel and her husband lived on the same side of the tracks as the depot, and about 750 feet south of the crossing. On the morning of April 10, 1925, she and her daughter, Mrs. Preston, left her home for the purpose of going to the store and post office on the opposite side of the tracks. There was a freight train about a half a mile in length standing on the crossing, which was near the middle of the train. The train extended beyond the Daniel residence. Mrs. Daniel and her daughter walked along the railroad right of way for some distance and, finding that the train was blocking the crossing, they climbed over between the cars to the north side of the track and proceeded to the post office and store. Having finished their business they started back home in a few minutes, and finding that the crossing was still blocked they walked along the west side of the railroad right of way until they reached a point nearly opposite their residence where they concluded again to cross over the train. Mrs. Preston went first and got safely across. While Mrs. Daniel was attempting to climb over between two of the cars the train started and her foot was caught and mashed between the couplings. Mrs. Daniel died from blood poisoning, which developed a few days later. Mrs. Preston, the only eye-witness, testified that the train was moved without any signal or warning. There was other evidence to the same effect, and some evidence that the usual signals were given. Appellant's conductor in charge of the train on the occasion of the accident testified that it was a general practice among the traveling public when the crossing was obstructed to go between the cars and that sometimes they climbed between the cars when the crossing was cut. Leonard Daniel, a witness for appellee, testified that there was a good deal of traffic going to and fro from the people on both sides using the public crossing, and that when the public crossing was obstructed he had seen the school children crawl under the train and some climb over. He had also seen women and men climb over. He also...