Chesapeake & O.R. Co. v. Harrell's Adm'R
| Decision Date | 11 February 1938 |
| Citation | 271 Ky. 763 |
| Parties | Chesapeake & O.R. Co. v. Harrell's Adm'r. Same v. Wilson's Adm'r. Same v. Striegel's Adm'r. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Where facts are substantially the same on the second trial, opinion rendered on appeal after first trial stands as law of case.
2. Railroads. — Where warning device at crossing adopted by railroad to give warnings of approaching trains is in operation and is reasonably sufficient to impart warning, it should not be left to jury to determine whether other or additional means should have been employed.
3. Railroads. — Where it was light enough for occupants of automobile struck by train at crossing about eight minutes after sundown to see wigwag signals and other automobiles waiting on other side of track, failure of railroad to have headlight on locomotive burning would constitute antecedent negligence only and was not a factor to be considered in determining whether or not occupants were guilty of contributory negligence.
4. Negligence. — One guilty of contributory negligence cannot base his right of recovery upon alleged antecedent acts of negligence on part of one causing injury.
5. Railroads. — Where it appeared that only about two seconds remained in which to stop train after fireman discovered that automobile which train struck was not stopping at crossing, last clear chance rule did not apply in favor of occupants of automobile.
6. Appeal and Error. — Where evidence on second trial of action for death of occupants of automobile struck by train at crossing about sundown, after having waited for train to pass traveling in opposite direction, was substantially the same as on former trial, reviewing court, in accord with former ruling, reversed judgments against railroad on ground that occupants were contributorily negligent.
Appeal from Jefferson Circuit Court.
EDWARD P. HUMPHREY and MARVIN H. TAYLOR for appellant.
BOOTH & CONNER and CHARLES W. MORRIS for appellees.
OPINION OF THE COURT BY MORRIS, COMMISSIONER.Reversing.
These three appeals are from judgments for $9,000 entered upon verdicts in each case in favor of appellee, administrator. The cases were heard together below and so heard here. This is the second appeal. On the former review we reversed the judgments, holding that decedents were guilty of contributory negligence, and that the appellant was not guilty of actionable negligence. Chesapeake & O.R. Co. v. Harrell's Adm'r, 258 Ky. 650, 81 S.W. (2d) 10, 14.
Upon return of the cases amendments to the original petitions were filed, one pleading that the proximate cause of the injuries was the failure of appellant to have a headlight on its engine lighted at the time of the accident, in a manner required by an Interstate Commerce Commission rule. The other pleaded negligence of appellant's employees in failing to use ordinary care to discover the alleged perilous position of decedents, and in failing to use such means as were at its command to avoid the injury.
Upon introduction of proof the court refused appellant's request for a directed verdict; such refusal is the sole ground now urged for reversal. The court apparently followed our opinion on the first appeal, to the extent of concluding that decedents were guilty of contributory negligence. However, he instructed the jury that, if they should believe from the evidence that the failure to have the headlight burning was the proximate cause of the alleged injuries, they should find for plaintiffs, regardless, in so far as instructions were given, as to whether or not decedents were negligent. Another instruction submitted the question of liability, if it was believed appellant failed to exercise reasonable care to discover peril, or to use ordinary care to avoid injury after the peril was discovered.
The contention of appellant is that the opinion on the first appeal is the law of the case. On the other hand, appellee insists that this is not true since he claims the proof on the second trial showed that decedents were not guilty of contributory negligence, and appellant was shown to have been negligent.
The rule consistently adhered to by this court, is that, where the facts are substantially the same on the second trial, the former opinion stands as the law of the case. Kentucky Road Oiling Company v. Sharp, 257 Ky. 378, 78 S.W. (2d) 38; Louisville & N.R. Co. v. Cornett's Adm'r, 237 Ky. 131, 35 S.W. (2d) 10; Robinson v. Chesapeake & Ohio Railway Company, 227 Ky. 458, 13 S.W. (2d) 500; Carrithers v. Jean's Ex'r, 259 Ky. 20, 81 S.W. (2d) 857; Preece v. Woolford, 200 Ky. 604, 255 S.W. 285. The rule was stated somewhat differently, but to the same effect, in Vincennes Bridge Company v. Poulos, 234 Ky. 243, 27 S.W. (2d) 952, 953:
"The `law of the case' doctrine prevails, unless the facts [on second trial] are materially different."
Appellee contends that neither the court below nor this court on the appeal, considered the ordinance of the city of Anchorage prohibiting the blowing of the engine whistle, or a ringing of the bell, as bearing on the alleged contributory negligence of decedents. It was conceded on each trial that there was neither a ringing of the bell nor sounding of the whistle. The argument is based on the assumption that, in addition to such warnings as were given, by means of the signal light and ringing of the bell on the south side, and a similar light on the north side of the track, by means of devices shown to have been in operation, the failure to ring the engine bell, blow the whistle, or have a headlight burning on the engine, relieved the decedents of the duty of exercising ordinary care. In addition to the warning by the lights and the signal operating on each side of the two tracks, there were other warnings. Mrs. Thompson blew her automobile horn; Friedman called to decedents from the north side of the track. While it appears that the driver of the car may have heard the warning given by Mrs. Thompson, we have no means of knowing whether he heard the one given by Friedman. However this may be, the driver did not heed any of the warnings. The effect of failure to give signals, other than such as were given, was fully considered in the former opinion. The situation is not materially different on this trial.
In the case of Stephenson's Adm'r v. Sharp's Ex'rs, 222 Ky. 496, 1 S.W. (2d) 957, we upheld the action of the court in giving a peremptory instruction, and in refusing to give an instruction submitting to the jury as to whether or not the railroad company should have provided other means at the crossing for warning the traveling public than a wigwag signal. It is true in the case just cited that a whistle was blown. When a railroad company adopts effective means or devices at a crossing for the purpose of giving warnings of the approach of a train, then in operation and reasonably sufficient to impart warning, it should not be left to the jury to determine whether other or additional means should be employed. Louisville & Nashville Railroad Company v. Adams' Adm'r, 205 Ky. 203, 265 S.W. 623; Louisville & N.R. Co. v. Jameson's Adm'x, 214 Ky. 552, 283 S.W. 1026. These suggestions direct themselves to the question of negligence on the part of the appellant, but they also serve to show the indefensibility of the position taken by appellee in regard to the lack of showing of contributory negligence of decedents.
It is said in argument that decedents had no knowledge of a double track maintained at the point on the crossing where the accident occurred. Appellee, perhaps, correctly insists that at the H.K. tower there was no double track, nor any such between the Bellwood crossing and La Grange, whence these travelers had come. How the decedents could have had in mind that that which is called a switch track paralleling the main was not a double track, cannot be conceived. We have examined the blueprints about which there is no argument as to correctness, and we can see nothing to demonstrate any difference in the tracks at the place of the accident and those at the H.K. tower, over which they crossed before coming on to the second crossing. It is also argued that there was a 7 per cent. grade from the railroad tracks to a point where the roadway made its right angle turn to cross the tracks, and that travelers could not see the two tracks. There is proof that the two tracks cannot be readily seen from certain points as the traveler on the highway approaches them. There is proof that the second track can be seen from these points by one seated in an automobile. It is clear from the proof that the two tracks, east and westbound, are on a level with each other and approximately 13 feet apart. It is inconceivable how a traveler, upon reaching the south rail of the eastbound track, could fail to see that there was another track just ahead, if he looked at all.
The feature of the case was discussed in the first opinion, and we said:
"As they crossed this south track, the north track was in full view and only 13 feet away, and north of it were two waiting automobiles, which were notices to them of something wrong."
We find no new material or substantial evidence in respect to this feature of the case.
It is argued that the failure to have a burning headlight was not only actionable negligence on the part of the appellant's servants, but was a factor to be considered in determining whether the travelers were or were not guilty of contributory negligence. There was proof that the headlight was not burning; that the accident occurred eight minutes after sundown; that it had begun to get dark; that lights were burning on the decedents' car, and on another...
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