Chesapeake & O. Ry. Co. v. Switzer

• Decision Date: 13 December 1938
• Citation: 275 Ky. 834,122 S.W.2d 967
• Parties: CHESAPEAKE & O. RY. CO. v. SWITZER.
• Court: Kentucky Court of Appeals

122 S.W.2d 967

275 Ky. 834

CHESAPEAKE & O. RY. CO. v. SWITZER.

Court of Appeals of Kentucky

December 13, 1938

Appeal from Circuit Court, Johnson County.

Action by Allene Switzer against the Chesapeake & Ohio Railway Company to recover for injuries sustained when an automobile in which plaintiff was riding collided with defendant's freight engine. From a judgment for plaintiff, defendant appeals.

Reversed with directions.

Le Wright Browning, of Ashland, and Kirk & Wells, of Paintsville, for appellants.

C. F Pace, of Paintsville, for appellee.

REES Justice.

The appellee, Allene Switzer, obtained a judgment for $1,200 against the Chesapeake and Ohio Railway Company for personal injuries sustained by her as the result of a collision between an automobile in which she was riding and one of appellant's freight engines which, at the time of the collision, was standing on a highway crossing just outside the corporate limits of the city of Paintsville.

There were two trials of the case. On the first trial the jury returned a verdict for the defendant, and the plaintiff's motion for a new trial was sustained and the verdict was set aside. The defendant, in due time, prepared and tendered a bill of exceptions of the proceedings on the first trial, and that bill has been made a part of the record on this appeal in order to present the propriety of the court's ruling on the motion for a new trial. At the conclusion of the second trial the defendant moved to substitute the former verdict in lieu of the verdict returned by the jury on the second trial, and the motion was overruled. Appellant insists that the court erred on the second trial of the case in overruling its motion for a directed verdict in its favor and also on the first trial in sustaining plaintiff's motion and grounds for a new trial.

On the night of July 26, 1934, the appellee, in company with Everett Johnson and Myra Roberts, drove from Paintsville to Pikeville in an automobile driven by Johnson. They stopped at Prestonsburg, and Johnson bought a pint of gin. Appellee and her two companions each took a drink, and before they reached Pikeville Johnson took another drink. They remained in Pikeville about thirty minutes. Johnson admitted that while there he took a third drink out of the bottle. On the return trip to Paintsville the car in which they were riding collided with a large mallet type freight engine standing across the highway, and the three occupants of the car were painfully and seriously injured. The car was practically demolished. The engine was on a spur track connecting the main line tracks with a "Y" track used for turning engines. The two legs to the "Y" track meet near the highway, and the single track then extends across the highway to the main tracks. In turning an engine, it is backed or moved out on one leg of the "Y" and then moved forward on the other leg. During this operation it is necessary for the engine to remain standing on the crossing while the switch is being thrown. On the occasion in question, the engine had been standing on the crossing between a minute and a minute and a half before the collision occurred. The engine was 16 feet in height, and the engine and tender were nearly 100 feet long. The headlight on the front of the engine was burning as was the light on the rear of the tender. There were lights in and on the cab, and ventilation holes in the firebox through which light would shine on each side of the engine. According to the proof, some of these lights could have been seen for a distance of several hundred feet by one traveling on the highway from the direction of Pikeville. The highway at this point is straight for a distance of 1,000 or 1,200 feet, and the view of travelers thereon is unobstructed. The appellee testified that she did not see the engine until the automobile was within 12 or 15 feet of it, and Johnson testified that he was within 20 or 30 feet of the engine when he first saw it and was unable to avoid the collision. He swerved the car to the left and struck the tender. He claimed that he was driving at a speed of about 25 miles an hour, and, as he was approaching the crossing, ran into a patch of fog and was unable to see the engine until he passed through the fog. Members of the engine crew, two of whom were introduced as witnesses by the plaintiff, and others who were near the scene of the accident and saw the approaching automobile testified that it was traveling at a speed of 50 or 60 miles an hour. Both the appellee and Johnson, the driver of the car, were familiar with the highway and the location of the crossing. It is appellee's contention that it was the duty of those in charge of the engine to give some warning to travelers on the highway that the crossing was occupied by the engine, and, further, that the engineer failed to give sufficient, or any, warning to the occupants of the car after their peril was discovered. It is not claimed, and the proof fails to show, that the crossing in question was dangerous because of its surroundings. Johnson, the driver of the car, according to his own testimony, was guilty of negligence, which was the proximate cause of the accident, either in failing to drive at a speed at which he could stop within the distance covered by his lights or in failing to see the engine in time to avoid the collision.

In recent years, numerous cases have been presented to the courts of other jurisdictions involving the right of a plaintiff who has collided with a train occupying a grade crossing to recover from a railroad company. The great weight of authority is to the effect that a person who drives, or is driven into, the side of a train standing or moving over a grade crossing cannot, in the absence of special circumstances rendering the crossing peculiarly hazardous, recover from the railroad company. The question was first presented to this court in the case of Louisville & Nashville Railroad Company v. Mischel's Adm'x, 272 Ky. 295, 114 S.W.2d 115. The facts in that case and the instant case are very similar, although it was claimed in the Mischel Case that the highway was unusually dangerous because of its surroundings in that there was a curve in the highway and trees, shrubbery, and signboards obstructed the view of a traveler on the highway as he approached the crossing. After reviewing a number of cases from other jurisdictions, we said [page 120]: "After a careful review of the cases cited, which we think clearly lay down the law as applicable in such a situation as is here presented, we are compelled to hold that there is a lack of showing of any negligence on the part of appellant such as would constitute the proximate cause of the injury. Having reached such conclusion, it becomes unnecessary to discuss whether or not the guest was negligent. A recovery could only be had of appellant on a showing of actionable negligence on its part; none having been shown, the court should have directed a verdict for appellant."

A number of cases are cited in the Mischel opinion. Other recent cases from foreign jurisdictions supporting the rule announced in the Mischel Case are: Sisson v. Southern Railway Company, 62 App.D.C. 356; 68 F.2d 403; William A. Smith Construction Company v. Brumley, 10 Cir., 88 F.2d 803; Northern Pacific Railway Company v. Bacon, 9 Cir., 91 F.2d 173; Mabray v. Union Pacific Railway Company, D.C., 5 F.Supp. 397; Johnston v. Southern Railway Company, Ala.Sup., 181 So. 253; Southern Railway Company v. Lambert, 230 Ala. 162, 160 So. 262; Chicago R.I. & P.

Railway Company v. Sullivan, 193 Ark. 491, 101 S.W.2d 175; New York Central Railway Company v. Casey, Ind.Sup., 14 N.E.2d 714; Dolan v. Bremner, 220 Iowa 1143, 263 N.W. 798; Sheets v. Baldwin, 146 Kan. 596, 73 P.2d 37; Witherly v. Bangor & A. R. Co., 131 Me. 4, 158 A. 362; McParlan v. Grand Trunk Western Railway Company, 273 Mich. 527, 263 N.W. 734; Simpson v Pere Marquette Railroad...