Chesapeake & O. Ry. Co. v. Berry's Adm'r

• Decision Date: 23 April 1915
• Parties: CHESAPEAKE & O. RY. CO. v. BERRY'S ADM'R.
• Court: Kentucky Court of Appeals

175 S.W. 340

164 Ky. 280

CHESAPEAKE & O. RY. CO. v. BERRY'S ADM'R.

Court of Appeals of Kentucky.

April 23, 1915

Appeal from Circuit Court, Greenup County.

Action by William Berry's administrator against the Chesapeake &amp Ohio Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Worthington Cochran & Browning, of Maysville, for appellant.

Dinkle & Prichard, of Catlettsburg, and Proctor K. Malin, of Ashland, for appellee.

SETTLE J.

In this action, brought by the appellee, John C. Berry, administrator of the estate of William Berry, deceased, against the appellants, the Chesapeake & Ohio Railway Company, Burton Belton, engineer, and Ed V. Gilliam, fireman, in its employ there was a recovery of a verdict and judgment for $8,000 damages. The refusal of the circuit court to grant appellants a new trial resulted in this appeal.

The decedent, William Berry, while walking westward on a track of the appellant company in the town of South Portsmouth, Greenup county, was struck and killed by one of its freight trains, operated by the appellants Belton and Gilliam as engineer and fireman. The depot platform at South Portsmouth is about 300 feet in length and is situated between the railroad tracks and the Ohio river. The decedent seems to have been struck by the engine at a point between 300 and 400 feet from the west end of the depot platform, the train running westward. He had just returned from the city of Portsmouth, which is in the state of Ohio, on the Ohio river opposite South Portsmouth, having in his possession a sack of grass seed purchased at Portsmouth, Ohio, with which he was going to his home; the residence being situated several hundred feet west of the depot and facing the railroad. Decedent, after crossing the Ohio river on the ferryboat, walked up the ferry landing road to the depot platform, thence down the platform to the west end of it, where he got on the west-bound track and proceeded toward his home carrying the sack of grass seed on his shoulder. After walking down the track about 300 or 400 feet he was overtaken and struck by the train, which was not in sight at the time he stepped on the west track from the depot platform. It appears from the bill of evidence that there were some cars on the spur track paralleling the main tracks and between them and the river at the point where decedent was struck and killed, but there were no cars on the tracks or anything else to obstruct the view of those in charge of an engine or train going west, and that those in charge of a train or engine, or a man standing, on the main west-bound track at a point 2,000 feet east of the point of the collision, could see a person upon the railroad track where the collision occurred.

According to the testimony of the engineer, Belton, he blew the regulation whistle for the road crossing east of the depot, but he did not indicate the precise point at which the whistle was sounded. The fireman, Gilliam, failed to testify that such a whistle was blown, and the same was true of the head brakeman, Bracken. Two other witnesses who were introduced in appellants' behalf, Mrs. Bush and Mrs. Cooper, failed to testify that they heard the whistle the engineer claimed to have sounded for the road crossing. A witness, Brooks, testified, however, that he heard a whistle as the train came around the curve, quite a distance east of the depot. Roy Berry, Mrs. Tony Davenport, Mrs. Frank O'Brien, Bessie Berry, and Jeff Smith, appellee's witnesses, testified that they did not hear the whistle sounded for the crossing east of the depot. According to the testimony of the engineer, Belton, he did not see the decedent before the train struck him. He claimed to have been maintaining a lookout from the engine cab, but that, after passing a water stand situated near the west end of the platform, he was prevented from seeing the track at the point where decedent was struck, because of a curve in the track which caused the smokestack and front of the engine to intercept his view; but that upon the train's reaching the end of the depot platform the head brakeman, Bracken, who happened to be in the cab of the engine, called to him that a man was on the track and to sound the whistle, which he immediately did, twice. At that time the fireman was engaged in putting coal in the fire box of the engine. Perhaps a better understanding of what then occurred will be obtained from the following questions put to the engineer and his answers thereto:

"Q. What did he (the brakeman) say to you? A. The brakeman called to me and notified me there was a man on the track, and I blew the regulation road crossing about the west end of the platform, and the fireman was down in the pit putting in the fire; but he immediately looked out of the window and notified me that the man had been struck in attempting to get off and I whistled again and applied the brakes. Q. Was there any interval or space of time between your whistles? A. Very little, they were right together."

Both Gilliam, the fireman, and Bracken, the head brakeman, corroborated these statements of the engineer, and further testified that, at the time the engineer's attention was called to decedent's being on the track and the whistle was first blown, the engine was about eight car lengths from the point where decedent was struck. The brakeman also testified that he could not reasonably have seen the decedent sooner than he did because of the close proximity to the track of the columns of the water stand, which made it dangerous for him to extend his head beyond the side of the cab until the engine passed these columns.

On the other hand, Mrs. Tony Davenport, who had crossed on the ferryboat with decedent from Portsmouth and was walking or standing near the place of the accident, testified that no whistle was blown or bell rung until about the time the decedent was struck by the train, and Roy Berry's testimony was to the same effect. He did not, however, see the train when it struck the decedent and was away from the place of the collision, so his statement as to where the train was when the whistle was sounded was merely a matter of judgment in locating the place of the sound.

According to the testimony of appellee's witnesses, the train in approaching the depot and when it struck the decedent was running at a high rate of speed, some of them saying 25, some 35, and one of them at a speed of 40 miles per hour. The engineer, fireman, and brakeman fixed its speed at from 15 to 20 miles an hour. According to all of the appellee's witnesses, there was no ringing of the engine bell as the train approached and passed the station.

It is conceded that South Portsmouth is a town of the sixth class, containing in its corporate limits and suburbs a population of about 2,000 people; that there was but a narrow strip of level or bottom land between the Ohio river and the contiguous hills, substantially the whole of which is occupied by the depot and tracks of the appellant Chesapeake & Ohio Railway Company; and that several hundred people daily use the tracks at the point where the decedent was killed.

Appellants urge a reversal of the judgment upon three grounds: (1) Error of the court in failing to peremptorily direct a verdict for appellants; (2) error in refusing appellants a new trial, because the verdict of the jury was flagrantly against the evidence; (3) error in instructing the jury.

It is insisted for appellants that their motion for a peremptory instruction should have been sustained for two reasons: (1) There was no evidence of negligence on the part of appellants; (2) the evidence conclusively established the contributory negligence of the decedent. With respect to the first of these propositions, it is argued that under the allegations of the petition the right of recovery is confined to the alleged negligence of the appellant railway company's servants in the operation of the train after their discoverey of the decedent's peril; and that, as there was no negligence shown in this particular, the trial court should have peremptorily directed a verdict for appellants. The negligence of which appellee complains in the petition is alleged as follows:

"Plaintiff states that the negligence of the defendants which caused the death of his said decedent at the time and place aforesaid consisted of the said defendant's operating said engine and train in the corporate limits of said city at a reckless, unusual, and excessive rate of speed without signaling or warning of its approach to the place where it struck and killed the said decedent, and with gross and reckless negligence and indifference failed to use ordinary care to discover the said decedent on said track, in time to have prevented injuring and killing him as aforesaid, and did with gross negligence and indifference fail to stop said train or check the speed thereof sufficiently to avoid striking the decedent by the use of ordinary care after discovering his peril on said track."

Preceding these allegations are others to the effect that the negligence complained of was gross, and the joint and concurrent negligence of all the appellants.

It is further argued by appellants' counsel that, though the above averments of the petition charged two acts of negligence if those in charge of the train did actually see the decedent upon the track, and did discover his peril, in time to have stopped the train and avoid its striking him, then it is immaterial as to what prior negligence they were guilty of, for in such case the failure to keep a lookout or to give warning of the train's approach or to run the train at a proper rate of speed did not cause the accident or contribute thereto; it was the negligent failure to...