C. & O. Railway Company v. Boren

• Citation: 202 Ky. 348
• Parties: C. & O. Railway Company v. Boren.
• Decision Date: 07 March 1924
• Court: Court of Appeals of Kentucky

Page 348

202 Ky. 348

C. & O. Railway Company v. Boren.

Court of Appeals of Kentucky.

Decided March 7, 1924.

Appeal from Boyd Circuit Court.

WORTHINGTON, BROWNING & REED and PRICHARD & MALIN for appellant.

DYSARD & ADAMSON for appellee.

OPINION OF THE COURT BY JUDGE ROBINSON — Affirming.

On April 4, 1921, appellee, Anna V. Boren, who lived in Ashland, Kentucky, took her automobile from the garage in which it was kept and after driving a short distance, attempted to cross the tracks of the C. & O. Railway Company at what is known as the Ann street crossing in the eastern portion of the city. At this point it appears that four tracks are maintained running north and south, two used as sidings and the others for east and west bound trains.

Appellee claims that as she approached the road she slowed up her car and looked carefully up and down, also listening for the sound of any approaching train, and while her vision was somewhat obscured by box cars having been placed on the siding, she discovered nothing calculated to prevent a safe crossing and proceeded on her way, and after having passed over the two siding tracks and the west bound main line, one of the wheels of her car dropped into a deep hole between the rails of the east main line causing it to stop suddenly, and, as she expresses it, "killing the engine;" and while endeavoring to start the machine she suddenly saw a train bearing down upon her but a short distance away, affording her only time to spring from the car and run a few feet before it was struck and utterly demolished.

On June 1, 1921, she filed a petition in the Boyd circuit court wherein suit was brought against appellant for $1,385.00 alleging the total destruction of her machine, which she claimed at the time of the accident was worth this amount, and the further sum of $120.00 which she alleges was lost by reason of the destruction of her automobile which she had used to carry passengers and packages to different parts of Ashland, by means of which she had cleared $2.00 per day; and up to the time of the filing of the suit she had been without its use for sixty days.

The petition alleged that the train was running at the rate of sixty miles an hour; that it failed to give signal or warning of any kind of its approach; and that the crossing was an especially dangerous one and had been allowed to become in a very bad state of repair, rendering it practically impossible to drive over it in safety. The answer of appellant contained a general denial of the allegations in the petition and alleged contributory negligence on the part of appellee, which was denied in her reply.

At the March term, 1922, the case was heard and the jury returned a verdict against appellant in the sum of $1,080.00, from which judgment this appeal is prosecuted. Upon their motion for a new trial being refused, appellant cites six grounds upon which a reversal is sought.

No. 1 alleges the admission of irrelevant, incompetent and immaterial evidence; and No. 2, a refusal to admit certain competent, relevant and material evidence.

After a careful reading of the testimony we see nothing to sustain these two contentions, and in fact they are not argued in appellant's brief.

No. 3. Because the court erred in overruling defendant's motion at the close of plaintiff's evidence and at the conclusion of all the evidence to peremptorily instruct the jury to find for it.

However, the transcript shows conclusively that the court was entirely correct in submitting the case to the jury.

No. 4. Because the court erred in giving to the jury instructions 1, 2, 3, 4, and 5.

Here the chief contention of attorneys for appellant seems to be centered upon the theory that plaintiff's pleadings did not contain proper or sufficient allegations to justify the instructions offered by the court, and in their brief say: "It may be conceded that there was evidence introduced by appellee which could have authorized a finding that appellant was negligent in failing to keep the Ann street crossing in the proper state of repair, and that such testimony would have justified the submission of this question to the jury if plaintiff's pleadings had alleged negligence in this respect," and further contend that the petition seeks no recovery upon this ground; and while it is alleged that the crossing was in a bad state of repair, there is no allegation that such condition was the result of negligence on the part of defendant, and that the court did not give any instructions relative to the condition of the crossing, nor was any such instruction requested; and that so far as appellee's right to recovery, the condition of the crossing should have been disregarded; and further that the petition did not allege that there was no failure to keep a lookout on the part of those in charge of the train, and that no instruction relative to this should have been given; and in this respect we may say that the petition might have been more full and specific relative to the allegations herein questioned. However, it will be observed it does allege that appellant's train was running at the rate of sixty miles an hour, and that it approached the Ann street crossing without giving a signal or warning of any kind; and further that said crossing is an especially dangerous one and appellant had permitted it to become in a very bad state of repair, rendering it practically impossible to drive across it, and that it was a public street in the city of Ashland, all of which was known to appellant.

True the petition does not allege that the appellant failed to maintain the proper lookout for the safety of pedestrians and those desiring to cross the tracks, nor does it set out with any degree of particularity the exact hole into which the wheels of appellee's car became embedded, but, as stated above, we are of the opinion that the allegations as contained in the petition were entirely sufficient to authorize the court to offer the instructions complained of. The petition sets out that, owing to the fact that this crossing in question is located on one of the most important streets of Ashland and from 500 to 1,000 people cross it daily, it would appear that this alone would place upon appellant the responsibility...