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

• Decision Date: 13 March 1907
• Citation: 100 S.W. 246,125 Ky. 49
• Parties: CHESAPEAKE & O. RY. CO. v. NIPP'S ADM'X.
• Court: Kentucky Court of Appeals

100 S.W. 246

125 Ky. 49

CHESAPEAKE & O. RY. CO. v. NIPP'S ADM'X.

Court of Appeals of Kentucky.

March 13, 1907

Appeal from Circuit Court, Carter County.

"To be officially reported."

Action by George Nipp's administratrix against the Chesapeake &amp Ohio Railway Company. From a judgment for plaintiff defendant appeals. Reversed.

John T Shelby and E. B. Wilhoit, for appellant.

Proctor K. Malin, Armstrong & Woods, and J. A. Scott, for appellee.

CARROLL C.

In October, 1901, George Nipp was struck and instantly killed by one of appellant's trains at a place known as the "Highland Stone Crusher," in Carter county. A trial in the circuit court resulted in a verdict and judgment in favor of the appellee for $1,000, from which this appeal is prosecuted.

The stone crusher is situated about 20 feet south of the main track on the inside of a sharp curve in the track east of Olive Hill and between that town and the summit of Corey Hill. There is a heavy downgrade from the top of Corey Hill by the rock crusher and extending to Olive Hill. There is a public road on the north side of the railroad that runs parallel with it for some distance, and at a point some 445 feet east of the crusher it crosses the railroad track. The crossing whistling post for trains going west is some distance east of the crossing. Close to the crusher, on the south side of the track, a store is located, and the evidence conduces to show that there was a footpath leading from the store, across the railroad track, to the county road on the north. The number of persons who used this footpath in crossing the track is variously estimated by witnesses at from 10 to 50 a day. On the day he was killed, the decedent went to the store and inquired for one Jarvis. Upon ascertaining that he was at work in the crusher, he went to the crusher and talked to Jarvis a few minutes, remained around the crusher for a short time waiting to see Jarvis further, and at the time of the accident was standing on the main track looking at the crusher. The train that struck appellee was going west at a speed of about 30 miles an hour. The engineer testifies that he did not see Nipp until the engine was within 50 feet of him, and that he immediately sounded the alarm whistle and applied the air brakes, but could not stop the train, or appreciably lessen its speed, before Nipp was struck. The engineer's position placed him on the outside of the curve, and thus prevented him from seeing Nipp until within a few feet of him.

Appellee rested their case upon the failure of the engineer to whistle for the road crossing, and upon this issue alone it was submitted to the jury; the court instructing the jury, in substance, that it was the duty of the servants of appellant in charge of the train to give warning of its approach to the public crossing east of the rock crusher by ringing the bell or sounding the whistle, and that, if the death of Nipp was caused by its negligence in this respect, they should find for appellee. They were further instructed that it was the duty of Nipp to exercise ordinary care for his own safety, and that if he knew, or by the exercise of ordinary care could have known, of the approach of the train in time to have prevented it from striking him, and negligently failed to avoid the injury, there could be no recovery. Other instructions were given, defining the measure of damage and the meaning of the word "care." Appellant asked the court to say to the jury that it was not liable in damages, unless the peril of Nipp was actually discovered in time to enable the engineer by the use of ordinary care to avoid striking him.

It is also earnestly insisted that sufficient evidence was not introduced by appellee to show a failure upon the part of the persons in charge of the train to give warning of its approach to the county road crossing, and that the court erred in instructing the jury upon this issue. The evidence touching this point is very conflicting. The weight of the affirmative evidence supports the theory that the usual and customary signals were given. On the other hand, a number of witnesses, who were in a position to hear the whistle if it had been sounded, testified that no whistle was sounded, or if it was, that they did not hear it, although they could have heard the whistle if it had been sounded. In some jurisdictions it is held that affirmative evidence that a warning was given must be accepted as proof of that fact, although an equal or greater number of witnesses who were not listening especially for it testified that they did not hear the warning. Horn v. B. & O. Ry. Co., 54 F. 304, 4 C.C.A. 346; Culhain v. N.Y. C. & H. R. R. Co., 60 N.Y. 137; Shufelt v. F. & P. M. Ry. Co., 96 Mich. 327, 55 N.W. 1013; B. & O. R. Co. v. Baldwin, 144 F. 54, 75 C.C.A. 211. But this rule of evidence does not obtain in this state. Where witnesses say positively that a warning was given, and other witnesses who were in a position to know whether it was or not say they did not hear it, the question will be left to the jury. It is for them to consider the weight and sufficiency of the evidence, and the mere fact that affirmative evidence may be entitled to more weight than negative evidence will not warrant the court in refusing to submit to the jury the issue of fact raised by conflicting testimony of this character. It would be a radical innovation upon the prevailing practice in this state, and an unwarranted invasion of the right of trial by jury, to hold that the court, as a matter of law, should say that the evidence of persons who testified that, although nearby, they did not hear any whistle sounded, was not in conflict with the testimony of others who said positively that the proper signals were given; it being entirely competent to show,...