Chesapeake & O. Ry. Co. v. Pittman
| Decision Date | 04 December 1942 |
| Citation | 166 S.W.2d 443,292 Ky. 331 |
| Parties | CHESAPEAKE & O. RY. CO. et al. v. PITTMAN. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Shelby County; Charles C. Marshall Judge.
Action by Lucille R. Pittman, administratrix of the Estate of Buford Lee Pittman, deceased, against the Chesapeake & Ohio Railway Company and others for the death of intestate resulting from a collision between a truck which he was driving and an engine of the defendant. From a judgment defendants appeal and plaintiff cross appeals.
Affirmed.
Todd & Beard, of Shelbyville, and Hunt, Bush & Lisle, of Lexington for appellants.
Kinsolving & Reasor and Bernard B. Davis, all of Shelbyville, Dummit & DeWeese, of Lexington, for appellee.
MORRIS Commissioner.
The case is before us on second appeal, with cross appeal. We reversed because of error in rejecting certain evidence offered by defendants, and a technical error in one instruction. See 283 Ky. 63, 138 S.W.2d 962. On the second trial plaintiff was awarded $4,750. Appellants contend that judgment should be reversed, because:
(1) The court erroneously overruled motion for directed verdict; (2) the verdict was flagrantly against the evidence; (3) deceased was guilty of contributory negligence as a matter of law; (4) the court erred in refusing to give tendered instructions, and in admitting incompetent evidence. Appellee contends that the judgment should be affirmed on appeal, but reversed on cross appeal because the amount of recovery is inadequate.
We first take up the contention that the court (over objection) admitted incompetent evidence. Miss Smitha, whose testimony we found to be "material" upon the first trial, testified that on the morning of the collision she was at the Hughes' home, located about 550 feet south of the crossing, adjacent to the highway. She was on the porch when the truck passed, going about 35 miles per hour toward the crossing; as it passed she heard the train whistle about the Doyle house. She anticipated that something was going to happen and stepped out on the straightaway highway and looked in the direction of the crossing; the truck was then about "middle way" between the home and the crossing; she saw the collision. (Pittman was just about to cross when the pilot struck his truck; Pittman was killed and his truck burned). She said that the wigwag was not working and that she did not hear the wigwag bell.
On the first trial it was not known that Tom Meeks was at the Hughes' home at the time of the collision. Defendants later took his deposition in which he said that he was in a rear room and his attention was attracted by some remark made by Frances Smitha. He moved into a front room where he could get a partial view of the wigwag from a window; he said: "I could see that wigwag when it would go to the east, and when it come back to this side I couldn't see it," because trees obstructed his view. He said that he heard the warning bell ringing. This witness admits that he had taken several drinks that morning.
Three witnesses were introduced who testified that before the last trial they had gone to the Hughes' home and looked from the same window and could see no part of the wigwag, due to the fact that there were a number of trees in line between the window and the apparatus, one "18 inches through; there are no leaves on the trees now, but the trunks of the trees obstruct the view, but that particular tree *** was directly between the window and signal," said one witness.
It may be gathered from the testimony that these observations were made at a time when the semaphore was stationary, though one of them used the expression "moving signal." This testimony met with objection, but was admitted. The contention is that as the accident occurred on August 6, 1937, the testimony was incompetent, because it was not shown that the situations were the same at the time of accident and when the observations were made.
It was shown that in August, 1938, the trees were in leaf; that in February, 1941, there were no leaves, and some of the trees had been cut in the interim. The general rule is that before such proof is competent it must be shown that the physical condition at a time when the observation is made must be substantially as at the time of the occurrence. We are of the opinion that since the proof shows that the physical situation was the same in all respects, except the betterment noted, the evidence complained of was not prejudicial. Howard v. Com., 246 Ky. 738, 56 S.W.2d 362.
A description of the crossing and surrounding is given in our first opinion, but not in detail. The track crosses the highway (26 feet in width) at an angle of 55 degrees. The semaphore post is at the southeast corner of the intersection; the location of the Hughes' house is referred to above; the Downs and Newton houses are respectively in the southwest and southeast corners of the crossing, not more than 75 feet distant. The Doyle house is about 300 feet west, on the south side of the track, and the Riggs home is around 800 feet west from the crossing. The whistle post and battery well (operating danger signal) are about 1,340 feet west of the crossing. A train running east passes through a cut 3 to 9 feet in depth, and begins about 825 feet west of and ends a short distance from the crossing. On the occasion Pittman was proceeding north on the detour, mentioned in former opinion. The train was traveling west, and as may be gathered from the proof, both traveling about 35 miles per hour.
Mr. and Mrs. Downs were at home; neither in position to see the crossing. He heard the whistle blow once, "up about the Doyle house." After the collision he went to the scene. He did not see the wigwag working, but heard a bell ringing. Mrs. Downs heard the whistle blow, "along by Doyles." She says it was blowing and te bell ringing at the time of the collision, and was not sure whether or not the whistle blew continuously after she first heard it.
Thomas Freeman was at the Downs' home, and learned of the collision and ran out; he noticed that the wigwag was not moving; he did not hear the signal bell, nor approaching whistle or bell. Miss Smitha's testimony has been mentioned above. Lea, a caddy, was on the golf course, about 300 feet east of the crossing and heard the whistle blow, as he judged "when the train was between the Riggs' and Doyle houses." Morris, who was about 200 yards east of the crossing near the track, says he heard the train whistle once about 310 feet west of the crossing.
There was testimony by many persons living near the crossing, and others who frequently traveled the road, to the effect that on numerous occasions, some very recent, when trains were approaching the crossing the signal appliance did not work; that at other times it worked for a long time when no trains were near. There is some proof that it was difficult for one driving north on the highway, because of the physical situation, to see the semaphore or crossing sign until within a short distance of the tracks.
For the defendant, the engineer and fireman said that the station whistle was blown about the whistle post, then for the crossing; that he blew the whistle and sounded the bell continuously from the post to the crossing. The supervisor of signals inspected this one on August 3d, and after the collision, and said that it was in working order. A fireman and engineer, who had passed the crossing 25 minutes earlier going east, said that when they went over the bell and wigwag were in action.
Marvin Newton, living near the crossing, and Raymond Doyle were coming out of the house and heard the "explosion." Before this they said they had heard the whistle blow several times, but did not think it blew continuously. Byron Springate, walking west up the railroad toward the crossing, saw the train coming and heard it whistle, "just after coming around the curve," before it reached the crossing. He was 150 yards away; he said the wigwag was working and the bell ringing. On cross-examination he said he heard the whistle about the Riggs home.
W. C. Donaldson, working at the golf course, about one-fourth mile from the crossing, saw the train about 350 yards west of the crossing. He heard the whistle blow four times; the first one before he could see the train, the others "in the cut," and heard the engine bell ringing, but not the crossing bell.
We have heretofore given the substance of Meeks' deposition. The section foreman who went to the scene one hour after the accident said the wigwag and bell were in action. Mrs. Newton lived near the crossing; she could not give the number of times, or fix the time or place where it began. It was shown that at the crossing was a sign, marked "Railroad Crossing." Section 786, Ky.Stats., 277.190, K.R.S. fixes the statutory duty as to ringing the bell or blowing the whistle at a distance of 50 rods from a crossing where a signboard is required to be kept, Ky.Stats. § 773, K. R.S. 277.160, and requires a continuous signal, one or the other until the engine reaches the crossing.
The whistle post was located 50 yards or more from the crossing, according to the testimony of the civil engineer, and there is proof that the whistle was blown at or near the post. However, a majority of the witnesses, who testified on the subject, said the first blowing of the whistle was "about the Doyle house," or between the Doyle and Riggs' houses." Whether the unanimity suggests to the mind "previous conferences" we cannot say. Proof as to the ringing of the engine bell is to all intents and purposes the same as to the blowing of the whistle, save fewer witnesses say they heard the bell ringing at any time.
If we should ignore all evidence relative to failure to give the...
To continue reading
Request your trial