Cahill v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 10 December 1891
• Parties: Cahill v. Cincinnati, N. O. & T. P. Ry. Co.
• Court: Kentucky Court of Appeals

18 S.W. 2

92 Ky. 345

Cahill v. Cincinnati, N. O. & T. P. Ry. Co.

Court of Appeals of Kentucky.

December 10, 1891

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by Kate Cahill against the Cincinnati, New Orleans & Texas Pacific Railway Company to recover for personal injuries alleged to have been sustained by the defendant's negligence. Plaintiff appeals from a judgment entered upon a verdict directed for defendant. Reversed.

Lewis J.

The jury having, at conclusion of the plaintiff's evidence in this case, under instruction of the court returned a verdict as in case of nonsuit, she appeals. The circumstances under which the injury complained of was done are substantially as follows: Plaintiff, an unmarried woman, had started about 9 a. m from the residence of her father, of whose family she was a member, to church in a buggy owned and driven by a young man, Henry Conrad, and was closely followed by her sister, also unmarried, and Jerry Conrad, in another buggy. The route they were going was along a private passway which crossed defendant's railway track, and west of it intersected a turnpike road. The course of the passway was from the residence mentioned about south-west to a point a short distance from the railroad; thence north-west, making the angle at intersection acute, and rendering it necessary for those in the buggies to turn more than half around in order to see a railroad train approaching the crossing from the south. The railroad track was, for a considerable distance south of the crossing, straight, and, in the opinion of some witnesses, a train coming from that direction can be seen 400 yards away from a point on the passway 100 feet from the crossing. But the train which caused the injury was a passenger express, three hours behind time, and running unusually fast,-according to the opinion of some witnesses as much as 60 miles an hour, none of them putting it at less than 45 miles. No signal of approach of the train to Cahill's crossing was given, nor, as the evidence tends to show, was there any upon its approach to the public crossing south of and distant a half mile from the other. The injury was done in January, and, though the weather was not excessively cold, it was enough so, the ground being frozen to require the buggy top raised, and the evidence tends to show Henry Conrad had on ear-muffs and plaintiff wore a veil. The gait at which they were traveling was not fast, the horse going in a walk. But whether either Henry Conrad or plaintiff, before going on the track, looked or listened for a coming train does not appear; for he was killed by collision of the buggy and train that took place, and she so seriously hurt that, as testified, her memory is blank about everything that took place during a period of time beginning when she left home that morning and continuing for days.

This court has expressly decided that failure of those in charge of a railroad train to give such signal as will be sufficient to apprise persons at or near a public crossing of its approach must be regarded as negligence. Railroad Co. v Hoehl, 12 Bush, 41; Railroad Co. v. Goetz, 79 Ky. 444. It has, however, been held that the same reason does not exist for giving signal and slackening usual speed of a train at a private crossing, and failure in that respect is not generally regarded negligence. Johnson v. L. & N Co., MS. Op. 1883; Hucker v. Railroad Co., M.S. Op., 7 Ky. Law Rep. 761. But the evidence in this case shows that a signal, when given by steam-whistle on approach of a railroad train from the south to the public crossing referred to, can be distinctly heard at and even beyond Cahill's crossing. And thus arises a question, not heretofore presented to or decided by this court, whether persons lawfully using a private crossing, in the vicinity of a public crossing, are entitled to benefit of signals required to be given at the latter; and whether, for failure to give them, negligence, as to them, should in any case be imputed to the railroad company.

In Shackleford v. Railroad Co., 84 Ky. 47, it was said: "Railroad trains must give the customary signals at public places and public crossings; the failure to do so is negligence. But this is required for the safety of passengers, trainmen, and the public using, and who have a right to use, the track at such public ways, and not for the purpose of protecting those who, as trespassers, may be crossing or using the track elsewhere." The same doctrine had been stated in the Hucker Case. The reason for that discrimination is that presence of a trespasser on a railroad track is not only likely to impede and sometimes endanger safety of moving trains, but, being wrongful and unlawful, those in charge cannot be fairly required or expected to anticipate and provide for it. Consequently the only duty a railroad company owes to such person is to use reasonable diligence to prevent injuring him when his actual peril is discovered in time to do so. But that rule cannot be properly applied in this case, nor was the precise question now before us settled or considered in the cases just cited. It here appears that Cahill's crossing was established, and the right to use it by those going to and from his residence secured, by express contract between the railroad company and his immediate vendor. Therefore neither plaintiff nor her companion, Conrad, was a trespasser when the collision occurred, nor had they assumed risks attending a trespass, but both had the legal right to go on the railroad track at that crossing. There is conflict of authority on the question; the doctrine of some of the courts being that only travelers on a highway or street approaching or using a crossing can complain of omission to give required signals, while by others it is held that all persons in the vicinity of a public crossing, whether intending to use it or not, are entitled to benefit of signals, and have a right to rely on them being given. However, as said by the editor of Amer. & Eng. Enc. Law, in a note, (volume 4, p. 917:) "Generally this conflict may be traced to the construction of particular statutory provisions. Sometimes it is due to radical differences of view among judges as to the purpose of statutory enactment regulating signals."

There being no statute of this state on the subject, nor, for the reason mentioned, a decided weight of authority, one way or the other, the question before us must be determined according to reason and analogy of the law, as was the original question of the duty of railroad companies to give signals for highway and street crossings. Although it may be regarded...