Chesapeake & O. Ry. Co. v. Pope

• Citation: 296 Ky. 254,176 S.W.2d 876
• Parties: CHESAPEAKE & O. RY. CO. v. POPE.
• Decision Date: 17 December 1943
• Court: Court of Appeals of Kentucky

176 S.W.2d 876

296 Ky. 254

CHESAPEAKE & O. RY. CO. v. POPE.

Court of Appeals of Kentucky

December 17, 1943

Rehearing Denied Feb. 4, 1944.

Appeal from Circuit Court, Boyd County; Watt M. Prichard, Judge.

Action by Homer Ross Pope against Chesapeake & Ohio Railway Company for personal injuries sustained by plaintiff when struck by defendant's train at a sidewalk crossing. From a judgment for plaintiff, defendant appeals.

Affirmed.

LeWright Browning, of Ashland, for appellant.

J. W McKenzie, of Ashland, and Martin & Smith, of Catlettsburg for appellee.

STANLEY Commissioner.

Three tracks of the Big Sandy Division of the appellee Railroad Company cross 34th or Plum Street in Catlettsburg at right angles. The sidewalk is constructed of a composition known as 'amesite,' and when the accident involved occurred it had disintegrated and crumbled away along the edges. There was a hole in the paving 3 1/2 to 4 inches wide and about 6 inches deep on the inside of and next to the outer rail of the eastbound track. On the morning of March 21, 1941, the appellee, Homer Ross Pope, was walking south and started across the tracks as a train was approaching. He accelerated his pace and was running to beat the train across when his right foot caught in the hole inside the last rail of the last track and he was thrown prone upon his face. The train a long freight, was several hundred feet away running about 25 miles an hour. He could not extricate his foot in his prostrate position and tried to wave down the train when it was about 200 feet away. The engineer apparently did all that could be done to stop it but it passed over and cut off Pope's leg. There is variation in the testimony as to the distance of the train from the crossing when the plaintiff started across the tracks, when he fell and when he tried to wave down the train; one witness saying it was at the latter time 'about a square away.' But we think the above is a fair statement of the occurrence. It is at least as favorable to the appellant as the circumstances justify.

Pope rested his cause upon alleged negligence in maintaining the crossing. The defendant traversed the allegations of the petition and pleaded contributory negligence. The verdict and judgment were for the plaintiff in the sum of $12,500.

The argument of the appellant that the court should have directed a verdict in its favor is rested upon the plaintiff's contributory negligence. We dispose of the case upon the hypothesis the plaintiff would be barred but for the fact that he was caught and stopped by the hole in the sidewalk. It is well established in the usual railroad cases that where one knows a train to be approaching close by and undertakes to cross ahead of it and is injured by the train, he is guilty of contributory negligence as a matter of law and cannot recover damages of the railroad company no matter how negligent the defendant might have been in the operation of the train. Barrett's Adm'r v. Louisville & N. R. Co., 206 Ky. 662, 268 S.W. 283; Louisville & N. R. Co. v. Lefever's Adm'x, 288 Ky. 195, 155 S.W.2d 845. Closer to the present case are instances where an automobile stalled on the track and the question of liability was resolved wholly to that of negligence under the last clear chance doctrine. The analogies of all those cases, however, fail because the questions were as to the negligence of the railroad company in the operation of the train and the contributory negligence of the plaintiff in going upon the track. We note briefly three of our cases upon which the appellant especially relies as having authorized a peremptory instruction to the jury to find for it.

In Greshem's Adm'r v. Louisville & N. R. Co., 24 S.W. 869, 15 Ky.Law Rep. 599, a boy was killed by a train while attempting to pass in front of it. He tripped on some object and fell, otherwise he would have gotten across safely. The boy was a trespasser and could not rely upon the failure of the train to comply with a statute and stop at an intervening crossing of another railroad track. The case is distinguishable because there was no negligence upon the part of the railroad company in relation to the object causing the boy to fall.

In Clere's Adm'r v. Chesapeake & O. R. Co., 253 Ry. 700, 70 S.W.2d 16, a motorist drove in front of an approaching train and his car stopped on the track. While there were holes or 'duck nests' in the street, its bad condition for travel did not cause the automobile to stall. A passenger in the machine got out and while endeavoring to get out of the way of the train caught his foot in an electric signal wire connecting the ends of two rails and was thrown down. His leg was cut off by the train and he died from his injuries. We held the decedent's fatal situation was of his own making, but that the case should have been submitted to the jury under the rule of the last clear chance. There was no negligence relating to the wire which caused the man to fall.

Franklin v. Louisville & N. R. Co., 267 Ky. 577, 102 S.W.2d 1010, was where a motorist tried to beat the train across and his car stalled. There was no intervening or additional cause of the accident.

These and many other cases like them may be said to come within the rule thus epitomized in Poole v. Lutz & Schmidt, 273 Ky. 586, 117 S.W.2d 575, 576: 'One who chances a risk or risks a chance and loses must suffer the consequences.' But did the pedestrian in this case risk the chance of having his foot caught in a trap laid for the unwary? No question is made of proven negligence of the Railroad Company in permitting this hole to remain in the sidewalk. It may be supposed that the plaintiff, as a mail carrier who passed along this way daily, knew the hole was there. But in this jurisdiction a pedestrian may 'walk by faith' on a public sidewalk, using reasonable care for his own safety. He is not obliged to anticipate negligence on the part of anyone else. Foreman v. Western Union Tel. Co., 228 Ky. 300, 14 S.W.2d 1079. The fact that he knows generally of a defective condition in it does not of itself constitute conclusive evidence of negligence on his part. City of Paintsville v. Spears, 242 Ky. 762, 47 S.W.2d 727; Krieger v. Louisville Water Co., 272 Ky. 746, 115 S.W.2d 286. It is a matter to be considered on the question, but that a pedestrian walked fast or ran on a sidewalk is not negligence per se.

We cannot accede to the argument of the appellant that the obvious fact that the plaintiff would not have been injured but for his negligence in going upon the track in front of the oncoming train bars a recovery for his damage because that negligence concurred with the defendant's negligence. 'To constitute contributory negligence, exempting the defendant from liability, it is as necessary that the plaintiff's negligence should be proximate and not a remote cause, efficiently contributing to the injury or damage, as it is that defendant's primary negligence, to impose liability, should be a proximate and efficient cause.' Shearman and Redfield on Negligence, Section 78. Before he may be barred from recovery of damages it must be shown that his conduct was a causal contribution, i. e., an act without which the injury would not have occurred. If he was negligent merely in creating the condition of the accident, and no more, he is not barred. Adams v. Parish, 189 Ky. 628, 225 S.W. 467. Here there was no continuance or sequence between his negligent act in going across the tracks and the injury, for the continuity or connection was broken by the supervening independent negligence of the defendant manifested by the hole in the sidewalk. There was no succession of events linked together so as to make a natural whole, and the intervening negligence of the defendant superseded the prior wrong of the plaintiff as the proximate cause of the injury. 38 Am.Jur., Negligence, Secs. 56, 67, 68, 70. The plaintiff's negligence related to the operation of the train and it could not be said to have been contributory for there was no negligence at all on the part of the railroad company in that respect. His negligence in undertaking to beat the train across had ceased or been exhausted, or practically so, when the supervening negligence of the defendant in permitting the trap-like hole to remain in the sidewalk operated to throw him down and inextricably hold him as in a steel trap. But for that hole he would have safely crossed for he had to make only another step or two to get out of the way of the slowly moving train, then 200 or 300 feet or perhaps farther away. The hole was the proximate cause of the accident. City of Louisville v. Bridwell, 150 Ky. 589, 150 S.W. 672; City of Ashland v. Williams, 203 Ky. 300, 262 S.W. 273; Annotations, 104 A.L.R. 1234. The negligence of the plaintiff in connection with it, if any, was only his failure to avoid it by the exercise of ordinary care for his own safety, as above discussed.

Quite like the present case is Samkiwicz v. Atlantic City R Co., 82 N.J.L. 478, 81 A. 833, 39 L.R.A.,N.S., 571, Ann.Cas.1913C, 1363, where a pedestrian caught his foot between the rail and planking and could not get it loose before a freight train was coming. In holding that it was proper to refuse a request to charge the jury that if the plaintiff went under the crossing gates 'he took all chances * * * and cannot recover,' the court said: 'This request assumes that in all cases where it appears that a person is injured while undertaking to cross a railroad on a public highway, when the crossing gates are down, a conclusive presumption arises that he is guilty of contributory negligence, and that he takes all the chances of being injured, without considering any other fact pertinent to the issue to be determined. In deciding...