Chesapeake & O. Ry. Co. v. Turley

• Decision Date: 18 October 1921
• Citation: 234 S.W. 188,192 Ky. 568
• Parties: CHESAPEAKE & O. RY. CO. v. TURLEY.
• Court: Kentucky Court of Appeals

234 S.W. 188

192 Ky. 568

CHESAPEAKE & O. RY. CO. v. TURLEY.

Court of Appeals of Kentucky.

October 18, 1921

Appeal from Circuit Court, Montgomery County.

Action by R. D. Turley against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hunt Northcull & Bush, of Lexington, and Lewis Apperson, of Mt Sterling, for appellant.

W. B White, of Mt. Sterling, for appellee.

SETTLE J.

The appellee sued in the court below to recover of appellant $2,500 damages for the death of a standard bred trotting mare, known as "Agnes Winn," of which he was the owner, alleging in the petition that she was killed at a public crossing by the negligence of appellant's servants in operating one of its trains which there struck and knocked her from the railroad track. The appellant's answer admitted the killing of the mare by its train, but denied that it resulted from any negligence of its servants. The trial resulted in a verdict for appellee awarding him $800 in damages. Appellant moved for a new trial, which was refused complaining of which and the judgment entered upon the verdict, it has appealed.

In this state the liability of railroad companies for the killing of stock by their trains is declared and regulated by Kentucky Statutes, § 809, which provides:

"If, by the locomotive or cars of any company, cattle shall be killed or injured on the track of said road adjoining the lands belonging to or in the occupation of the owner of such cattle, who has not received compensation for fencing said land along said road, the loss shall be divided between the railroad company and the owner of such cattle; but in every case where cattle are killed or injured by the negligence or carelessness of the agents or servants of any company, it shall pay full damages for such killing or injury; and the killing or injury of cattle by the engine or cars of any company shall be prima facie evidence of negligence and carelessness on the part of the company, its agents and servants."

By virtue of the provisions of this statute the admission of the killing by its train of appellee's mare contained in appellant's answer placed on the latter the burden of overcoming the presumption that it was caused by the negligence of its servants in charge of the train; and, unless the evidence introduced in its behalf affirmatively showed the absence of such negligence, the recovery obtained by the appellee was authorized.

The mare was killed about one mile west of the city of Mt. Sterling at a grade crossing where what is known as the Levee turnpike intersects the appellant's railroad track. The crossing admittedly is a public crossing; hence it is such a crossing as Kentucky Statutes, § 786, declares must be approached by a railroad train in the manner and with the precautions required by its provisions. The language of the statute is as follows:

"Every company shall provide each locomotive engine passing upon its road with a bell of ordinary size, and steam whistle, and such bell shall be rung, or whistle sounded, outside of incorporated cities and towns, at a distance of at least fifty rods from the place where the road crosses upon the same level any highway or crossing at which a signboard is required to be maintained, and such bell shall be rung or whistle sounded continuously or alternately until the engine has reached such highway crossing, and shall give such signals in cities and towns as the legislative authorities thereof may require. For failure to comply with this section or for violating or permitting any of its employees or agents to violate the provisions of this section the railroad company shall, in addition to subjecting itself to any damages that may be caused by such failure or violation, be guilty of a misdemeanor and be fined for each failure or violation not less than $10.00 nor more than $50.00, to be recovered by prosecution in the name of the commonweath in any court of competent jurisdiction. * * *"

The witness Finn, engineer in charge of the train by which the mare in question was killed, testified that in approaching the crossing at the time of the accident he gave with the locomotive whistle the customary crossing signal at a distillery warehouse "between 200 and 300 feet" from the crossing, but that he gave none of the bell or whistle signals required by the statute, supra, and that the mare when first seen by him was on the crossing and so near the engine that he could not stop the train or slacken its speed before striking her. It is patent from the engineer's testimony that he failed to give the signals for the crossing, or any of them, required by section 786, and, as his admission of such failure amounted to a confession of the negligence imputed to the company by section 809, supra, it only remained to be determined whether such negligence of itself, or in connection with other acts of negligence on the part of appellant's servants, if any were shown, was the proximate cause of the death of the mare, or whether it was caused by such other negligence, if any, alone.

It is insisted by counsel for appellant that the signals required for a public crossing by section 786, supra, are intended as a warning to persons, and not to stock of the coming of the train. This contention is rested on the assumption that, as the latter are without the capacity to reason, they are incapable of understanding the object of the signals or their meaning. The argument ignores the ease with which a horse or cow may be frightened and put to flight by the sudden, unusual, loud, and prolonged noises of a locomotive whistle or bell or both, in signaling as required by the statute, and also the probability that such fright as would thus be produced in the animal would instinctively cause it to quickly flee in a direction and to a place of safety away from the approaching train and its noises. We must hold this contention unsound; for by numerous decisions by this and other courts it has been so declared. Remley v. I. C. C. Ry. Co., 151 Ky. 796, 152 S.W. 973; Campbell v. M. & O. R. R. Co., 154 Ky. 582, 157 S.W. 931, 46 L. R. A. (N. S.) 881, Ann. Cas. 1915B, 472; C. & O. Ry. Co. v. Burton, 156 Ky. 736, 161 S.W. 1116; M. & O. R. R. Co. v. Roper, 58 S.W. 518, 22 Ky. Law Rep. 666; Campbell v. M. & O. R. R. Co., 162 Ky. 58, 171 S.W. 1002; C. & O. Ry. Co. v. Mason, 169 Ky. 699, 185 S.W. 71, L. R. A. 1916F, 127; Hohl v. Chicago, M. & St. P. Ry. Co., 61 Minn. 321, 63 N.W. 742, 52 Am. St. Rep. 598; Palmer v. St. Paul, etc., R. R. Co., 38 Minn. 415, 38 N.W. 100; Owens v. Hannibal & St. Joseph R. R. Co., 58 Mo. 386; Elliott on Railroads, vol. 3, § 1206.

One of the best-considered of the cases supra is that of Campbell v. Mobile & Ohio Railroad Co., 154 Ky. 582 157 S.W. 931, 46 L. R. A. (N. S.) 881, Ann. Cas. 1915B, 472, in which it was clearly held that the statute was intended for the protection of stock as well as persons, and that, where stock is killed or injured on a...