C. & O. Ry. Co. v. Young's Admr.

• Decision Date: 17 January 1912
• Citation: 146 Ky. 317
• Parties: Chesapeake & Ohio Railway Company v. Young's Administrator.
• Court: Kentucky Court of Appeals

146 Ky. 317

Chesapeake & Ohio Railway Company v. Young's Administrator.

Court of Appeals of Kentucky.

Decided January 17, 1912.

Appeal from Carter Circuit Court.

SHELBY & SHELBY, R. L. NORTHCUTT, WILHOIT & WILHOIT and H. L. WOODS for appellant.

SCOTT & HAMILTON, R. H. PAYNTER, RUFUS DINKLE and GEO. W. ARMSTRONG for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

This is the second appeal in this case. The opinion in the former appeal appears in 136, Kentucky, at page 784.

The action was instituted in the court below by John H. Scott, administrator with the will annexed of the estate of H. B. Young, to recover of appellant damages for his death; it being alleged in the petition that the decedent was killed by one of appellant's passenger trains, which by the negligence of its servants in charge thereof, was permitted to run over him.

The only question presented on the former appeal was as to the ruling of the circuit court in dismissing the action on the ground, that as Young left a will which had been probated, the order of the county court appointing appellee administrator of his estate without, in terms, naming him administrator with the will annexed, was void. It is only necessary to say we held that the legal effect of the order was to make him administrator with the will annexed which gave him the right to maintain the action, consequently the judgment of the circuit court was reversed and cause remanded to that court for trial.

The trial resulted in a verdict and judgment in appellee's favor for $5,000 damages, and the refusal of the circuit court to grant appellant a new trial, occasioned the present appeal.

We gather from the record before us that the stations of Olive Hill and Aden on appellant's railroad are situated in Carter County, and that Corey Hill, which is crossed by the railroad lies between them. Olive Hill, being at the foot of Corey Hill on the west and Aden at the foot of the hill on the east. The grade on this hill is quite steep, being 159 feet to the mile. A county or public road leading from Olive Hill runs parallel with the railroad to Aden, and crosses the railroad twice near the top of Corey Hill; one of these crossings being on the Aden side just east of the summit. There is a switch on the summit of the hill. West of the switch lies the farm of John P. Gee. The railroad at Gee's farm runs east and west and near the foot of the hill, beyond and south of the railroad from Gee's farm, lies the county road, between which and the railroad, is a small stream called Corey Creek.

There is also a road leading from Gee's residence and land to the county road on the south side of the railroad which goes down a hill through Gee's gate and on to the railroad track, thence down a short hill and across the creek to the county road. On the north side of the railroad track and between Gee's gate and the crossing, the road has been worn to such an extent as to leave a considerable depression with a bank on each side; and on the west side of this place there was a small pile of cross ties.

About three-quarters of a mile west of the Gee crossing is situated the farm of which the decedent was the owner at the time of his death, and upon which he and his family then resided. The county road intersected by the Gee road at the Gee crossing ran through or by Young's farm. Beyond and adjoining Gee's land, somewhat in the direction of Corey Hill, is a farm owned by one McFerran on which there is a burial place known as the McFerran grave yard. On the day he was killed Young attended the burial of a neighbor at the McFerran grave yard. In going to McFerran's he traveled the county road to a point where it was necessary to leave it to get to McFerran's, but after the burial he returned by Gee's house and through his farm over the road referred to as the Gee road, which was a better and shorter route to his home than the one he had taken in going to the burial. It appears from the evidence that the weather was cold, that there was a light snow on the ground that the decedent wore, in addition to his ordinary clothing, an overcoat and also a wrap around his neck. He was horseback and two or three of his neighbors, who were afoot, accompanied him from the burial ground to within 400 yards of the Gee crossing where he left them and went on in the direction of the crossing. Down to this point there is no disagreement between counsel as to the facts, but from now on the divergence of view manifested by the evidence and their respective contentions is marked.

It is contended by counsel for appellant, which contention is supported by the testimony of the engineer and fireman of the train, that when first seen by the engineer the decedent was in the act of riding upon the crossing; that at that time the train's speed was 40 or 50 miles an hour in going down the grade, and the engine was a little east of a trestle, which was 1,300 feet east of the crossing; that the engine then went on to a curve which caused the decedent to momentarily get out of sight of the engineer, but that when the engine left the curve the engineer saw the decedent riding down the track some distance west of the crossing; that the engine was then near the crossing, the alarm signal was immediately given and the emergency brakes applied; that as soon as the alarm signal was given the decedent, who had theretofore been riding in a fast walk, commenced to violently kick or spur his horse and put him in a gallop down the track, but after going about 60 feet after the whistle was sounded, and reaching a point 330 feet from the crossing, he was overtaken and struck by the engine, he and the horse knocked some distance on the south side of the track, and both instantly killed.

It is further contended by appellant's counsel, arguing from the testimony of the engineer, that at the time the decedent was killed, the train was going down grade with the steam of the engine shut off, and that upon discovering the decedent's peril every effort was made by the engineer to stop the train before it struck him, but that it was impossible to do so. Moreover, that the Gee crossing was a private crossing in approaching which the engineer was under no duty to blow the engine whistle, or slacken the speed of the train; that in getting upon the crossing in view of the train and riding his horse down the railroad track, as testified by the engineer, the decedent was a trespasser and guilty of contributory negligence, but for which he would not have been killed; and that the engineer owed him no duty except that of using ordinary care to protect him after discovering his peril, and this duty he fully performed.

In brief, it is insisted for appellant that upon the facts manifested by appellee's evidence, and again by the evidence as a whole, appellant was entitled to a peremptory instruction directing a verdict for it. On the other hand, it is contended by counsel for appellee that the evidence introduced in his behalf entitled him to a submission of the case to the jury, and also to a verdict.

It is conceded by appellee that appellant's engineer and fireman were the only eye-witnesses of the decedent's death, but contended that their testimony as to the manner in which it occurred is successfully contradicted by witnesses and certain physical facts, strongly corroborative of their testimony; furthermore, that the evidence as a whole manifested the engineer's negligence and fixed appellant's responsibility for the decedent's death.

The evidence "by word of mouth" showing negligence on the part of the engineer is, it is claimed, furnished by several witnesses who testified that there was no blowing of the engine whistle for or at the public crossing at the top of Corey Hill, a half or three-quarters of a mile from the Gee crossing, or for the Gee crossing, either of which, if given, as was the custom of appellant's trains, would have enabled the decedent in nearing the Gee crossing to know, or afforded him an opportunity to know, of the coming of the train and warned him of the danger of any attempt to cross the railroad track before it passed the Gee crossing.

The physical facts which, it is argued, show the decedent was surprised by the coming of the train, and that he was not guilty of contributory negligence in undertaking to pass over the railroad track at the crossing when and as he did, or in being upon the track below the crossing and at the place of collision with the train, are furnished by the tracks of decedent's horse in the snow and the indentations in and...