Chesapeake & O. Ry. Co. v. Brashear's Adm'x

• Decision Date: 11 January 1910
• Citation: 124 S.W. 277
• Parties: CHESAPEAKE & O. RY. CO. et al. v. BRASHEAR'S ADM'X.
• Court: Kentucky Court of Appeals

124 S.W. 277

CHESAPEAKE & O. RY. CO. et al. v. BRASHEAR'S ADM'X.

Court of Appeals of Kentucky.

January 11, 1910

Appeal from Circuit Court, Montgomery County.

"Not to be officially reported."

Action by the administratrix of James Brashear against the Chesapeake & Ohio Railway Company and others. Plaintiff had judgment, and defendants appeal. Affirmed.

Shelby & Shelby and Lewis Apperson, for appellants.

Charles D. Grubbs and Robt. H. Winn, for appellee.

CARROLL J.

In this action by the administratrix of James Brashear to recover damages for his death, the jury awarded her $8,750. This judgment we are asked to reverse on four grounds: First, that it is flagrantly against the evidence; second, for error of the court in giving and refusing instructions; third, for error in the admission of evidence; and, fourth, because the amount assessed as damages is excessive.

There have been three trials in the lower court. On the first trial the jury returned a verdict in favor of appellee for $9,000 but it was set aside by the lower court upon the motion of appellant. On the second trial a verdict for $10,000 was returned, and also set aside by the lower court. It seems to be conceded that the testimony on each trial was substantially the same. Briefly, the facts are as follows Brashear was a veterinary surgeon 37 years of age and had a good practice. In company with a Mr. Hadden, he was returning to Mt. Sterling in a buggy, and received the injuries that resulted in his death at a point where the road upon which he was traveling crosses at grade the tracks of the appellant company. The accident happened at noon in July, and the train that struck deceased was the regular passenger train on its way east, running about 45 miles per hour. The only negligence complained of was the failure of the persons in charge of the engine to give the statutory signals as the train approached the crossing. The public road upon which Brashear and Hadden were driving crosses the railroad at an angle of about 45 degrees, and for a distance of several hundred feet before reaching the crossing a traveler on the highway could see an approaching train after the train had reached a point some 1,600 feet from the crossing, except that near the track the view of a train would be partially at least obstructed by a board fence and tall weeds that were growing on the bank of a cut made by the railroad as it approached this public road crossing. Dr. Brashear was driving in a slow trot, and Hadden testifies that after crossing Hickson bridge, which is about 600 feet from the railroad, the doctor looked up to see if a train was coming and, not seeing any, they continued to drive on, and when they reached a point about 130 feet from the crossing he also looked and saw no train. Asked what precautions, if any, Dr Brashear took to discover the presence of a train, he said that they were expecting the train, and that the doctor, as they approached the railroad track, slowed up his horse and looked for a train but did not see any or know of its approach until the horse was in the act of stepping upon the track, when it was then too late to avoid a collision. He explained the failure to see the train by the fact that the fence and high weeds growing on the bank of the cut obstructed the view.

The evidence as to whether or not the statutory signals were given is very conflicting, but the weight of the direct--or, rather, what may be called the affirmative--evidence is to the effect that the signals were given, although several witnesses who were so located that they could have heard the whistle sounded and the bell ringing testify that they did not hear either. We have in more than one case held that evidence of this character is competent, and that the value of it is for the jury. L. & N. R. Co. v. O'Nan, 119 S.W. 1192; C. & O. Ry. Co. v. Nipp, 125 Ky. 49, 100 S.W. 246, 30 Ky. Law Rep. 1131.

Upon the question of the contributory negligence of...