Cincinnati, N. O. & T. P. Ry. Co. v. Wright

• Citation: 549 S.W.2d 499
• Parties: The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY, Appellant, v. Charles WRIGHT, by Lorna M. Wright, guardian and Lorna M. Wright, Appellees.
• Decision Date: 07 May 1976
• Court: United States State Supreme Court (Kentucky)

Page 499

549 S.W.2d 499

The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY Appellant, v. Charles WRIGHT, by Lorna M. Wright, guardian and Lorna M Wright, Appellees.

Supreme Court of Kentucky.

May 7, 1976.

Rehearing Denied Oct. 13, 1976.

R. L. Vincent, Williamstown, Raymond R. Vincent, Florence, Vincent & Vincent, Williamstown Bert T. Combs, Tarrant, Combs, Blackwell & Bullitt, Louisville, V. A. Bradley, Jr., Bradley & Bradley, Georgetown, Hugh O. Skees, Vincent & Skees, Florence, for appellant.

G. Wayne Bridges, Covington, Russel E. Lyons, Coshocton, Ohio, Asa M. Rouse, Walton, for appellees.

STEPHENSON, Justice.

A Boone Circuit Court jury awarded Charles Wright and his wife, Lorna M. Wright, $411,200 for injuries and for loss of consortium resulting from Wright's automobile colliding with a locomotive owned and operated by the appellant railroad company. The railroad company appeals from the judgment entered pursuant to the jury's verdict. We reverse.

The trial court submitted the case to the jury on instructions with interrogatory verdicts. The jury returned one verdict that the railroad company was not negligent in the operation of its train. Another verdict was returned finding that Wright was not negligent in the operation of his motor vehicle.

The jury found the railroad company negligent under Instruction No. 2 and awarded damages.

"INSTRUCTION NO. 2

"It was the duty of the railroad to maintain its right of way in a safe and reasonable condition, and to maintain a suitable and reasonably safe railroad crossing, including maintenance of so much of a public highway as was on the railroad right of way, and this duty included the duty to cause a sign board to be placed and constantly maintained at the crossing so as to be easily seen by travelers and not to obstruct travel and shall contain on each side in capital letters at least five (5) inches high the words 'Railroad Crossing.' (Emphasis ours.)

"QUESTION NO. 2: Do you find from the evidence that at the time and place of the collision described in the testimony, the railroad company was negligent under Instruction No. 2, and that such negligence was a direct and proximate cause of the collision and of the injuries to Charles Wright?"

The jury answered "yes."

This instruction was given by the trial court on Wright's alternate theory of the case that the railroad company did not use ordinary care in maintaining its right of way and crossing in that the railroad company failed to remove sand from the highway within its right of way.

We view the legal issue raised by Instruction No. 2 as dispositive of the case and confine ourselves to the proof on this issue.

The accident occurred on a Wednesday in the month of March. Wright, an engineer with Clow Corporation employed at the company's plant in Coshocton, Ohio, was en route from Ohio to the company's plant in a rural area of Boone County. The accident occurred at a railroad crossing on Frogtown Road. In this area, the railroad runs north and south; Frogtown Road runs east and west; and US highway 25 runs north and south roughly parallel to the railroad. From the intersection of US 25 and Frogtown Road, the 24-foot blacktop road is straight and level for approximately 100 feet, then slightly downgrades to the railroad crossing a distance of 150 feet. The road is essentially level at the crossing. The Clow Corporation plant is located on Frogtown Road east of the railroad crossing. On his way to the company plant, Wright proceeded along US 25, turned east on Frogtown Road and proceeded toward the crossing at about 25 to 30 miles per hour. The only eyewitness to the accident testified that Wright slowed down some distance from the crossing, then, when he apparently saw the train, applied his brakes, hit sand that had accumulated on the highway and skidded in the sand. The skid, a distance of 20 to 45 feet, carried his automobile into the side of the locomotive. Because of the serious nature of his injuries, Wright was unable to testify at the trial or give his deposition.

The sand had been spread on the eastbound lane of Frogtown Road west of the crossing by the Boone County Highway Department on Friday, Saturday or Sunday before the accident on Wednesday. The evidence is not clear as to which day it was done. According to the testimony, for many years sand was routinely spread by the county during and after snows and the accumulation of ice on Frogtown Road. The county never removed the sand from the highway. There had been snow on Friday and the day before which occasioned the spreading of sand. On Wednesday, the day of the accident, the weather was clear and dry, and the surface of Frogtown Road was dry. There is no evidence in the record as to when the snow disappeared.

A track supervisor for the railroad company testified that on his regular inspection of railroad right of way he inspected the area including the Frogtown Road crossing southbound on Monday before the accident and northbound on Tuesday before the accident. He testified he looked for things that might cause accidents between automobiles and trains at crossings and that he saw no sand on the approach to Frogtown Road crossing. The railroad right of way is 100 feet in width, 50 feet on each side of the center of the track.

According to the testimony of several witnesses, there was sand on the eastbound lane of the Frogtown Road for a distance of 200, 100, 50 or 30 feet from the railroad crossing back along the eastbound lane of the road. It is not clear from the evidence the amount of sand that had accumulated, and the testimony on this point characterizes it: "would say quite a bit" ; "wouldn't notice sand unless practically on it" ; "could not see sand in front of automobile for any distance" ; and "sand blends with road, don't believe you can distinguish it as sand instead of a dirty road."

It is in the context of this factual situation that we consider the duty of the railroad company with respect to the sand on Frogtown Road.

Instruction No. 2 imposed upon the railroad company the duty "to maintain its right of way in a safe and reasonable condition . . . including maintenance of so much of a public highway as was on the right of way . . ."

This instruction is based on Wright's theory of the case that KRS 277.060(2) imposed a statutory duty on the railroad company.

KRS 277.060(2) reads:

"Every railroad company shall restore to its former condition, as near as may be, any private road, highway, street, lane, alley, railroad, canal or watercourse upon or across which it has constructed its road, and shall maintain the same in that condition within the right of way of the railroad company. It shall construct suitable road and street crossings for the passage of traffic by putting down planks or other suitable material between and on each side of the rails, the top of which shall be at least as high as the top of the rails." (Emphasis ours.)

Assuming arguendo that the railroad company did have the duty to remove the sand within its right of way, we are of the opinion that Wright has not presented a submissible jury issue on that duty. With this duty imposed upon the railroad company, it was essential for Wright to prove that the railroad company knew, or by the exercise of ordinary care should have known, of this condition. This essential element of proof is required when the condition is created by someone other than the possessor of the premises. We view the situation here as analogous to those situations presented in "slip and fall" cases. Wiggins v. Scruggs, Ky., 442 S.W.2d 581 (1969), and Cumberland College v. Gaines, Ky., 432 S.W.2d 650 (1968). This is a slippery analogy in the sense that "slip and fall" cases involve situations where the possessor of the premises has control thereof. We do not believe that a railroad company has the same degree of control, if any at all, over a public highway constructed on the railroad right of way. Here the county highway department spread sand on a snow on the railroad company right of way Friday, Saturday, or Sunday preceding the accident on Wednesday morning. There is no evidence, direct or circumstantial, from which we could draw an inference as to when the snow melted and left the road in a dry condition as it was on Wednesday morning. One witness testified that he saw sand prior to the accident but does not specify the time. Another witness testified that he observed the sand the morning of the accident. The railroad company supervisor, who inspected the tracks, made his inspection southbound on Monday and northbound on Tuesday. He testified that he had made no entries in his notes on either day with reference to any condition on the crossing and that the crossing was in "good shape." He further testified that he would have noticed any appreciable accumulation of sand on the crossing and that he did not see any. We observe that this witness was not testifying about the condition of all that portion of the highway within the right of way. It is clear that so long as the snow...