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

• Decision Date: 31 May 1918
• Citation: 180 Ky. 765,203 S.W. 740
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. CARTER. [a1]
• Court: Kentucky Court of Appeals

203 S.W. 740

180 Ky. 765

CINCINNATI, N. O. & T. P. RY. CO. v. CARTER. ^[a1]

Court of Appeals of Kentucky.

May 31, 1918

Appeal from Circuit Court, Jessamine County.

Action by Ray Carter against the Cincinnati, New Orleans & Texas Pacific Railway Company and others. From judgment for plaintiff of $3,300 against the railway company, such defendant appeals. Reversed.

Bronaugh & Bronaugh, of Nicholasville, and John Galvin, of Cincinnati Ohio, for appellant.

C. C Bagby, Chenault Huguely, and Bagby & Huguely, all of Danville, and E. B. Hoover, of Nicholasville, for appellee.

MILLER J.

The appellant operates a railroad from Cincinnati, Ohio, to Chattanooga, Tenn., passing through Jessamine county, Ky. It maintains an electric block signal system for the protection of its trains. This block system is divided into districts or sections, each section being under the control of a maintainer or signal inspector, who personally looks after the maintenance of the blocks, making repairs, and seeing that they are kept in working order.

What is known as the Nicholasville section extends from a point north of Brannon near milepost 84 to a point a short distance north of Wilmore near milepost 95, and was on December 23, 1915 under the charge of the appellee, Ray Carter, as signal maintainer. Carter had been in the service of the appellant in various capacities since 1907, and had been signal inspector and maintainer for about six years. He was an experienced railroad man, acquainted with the time card and the manner of running extra trains. For the purpose of traveling over his section in the performance of his duties as signal maintainer and inspector of the several signal stations in his section he used a gasoline motor car or track velocipede, which was furnished him by the company.

On December 23, 1915, Carter left the telegraph office at the Nicholasville station about noon and went to his home for dinner. After dinner Carter returned to the toolhouse, where he kept his motor car, and placed it on the side or passing track, and proceeded southwardly, intending only to go down to the yard and do some work. However, after he had arrived at the yard and found that he had left the necessary tools at home, he changed his mind, and proceeded on his motor car towards the south end of his section. He continued on the side track until he reached the Harrodsburg turnpike crossing, where he transferred his motor car from the side track to the main track, and proceeded on his way. Although Carter did not, at any time, inform himself of the location of the trains upon the track, he doubtless knew the schedule of the regular trains.

At Jessamine station Carter met a freight train closely followed by what is known as the High Bridge hill engine. He took his motor car off the track, let this train and engine pass, and then placed his car back on the track and continued his journey. At a point about 2 miles south of Jessamine station there is a rock cut 10 or 12 feet deep and between 500 and 600 feet long. Entering this cut from the north the track curves to the left. South of the cut there is a fill, and south of the fill is another cut which extends southwardly to an overhead bridge near the Wilmore cemetery. The signal block or section 95--1 is located at the north end of the second cut; and about 35 or 40 yards north of this signal block there is located what is known in the record as the "triangle." The triangle is a post with a triangle on its top and has some connection with the electric block system. The distance between the two cuts is about the distance of ten telegraph poles, or 1,350 feet, and the curve continues through both cuts.

When Carter had reached a point between the two cuts somewhere near the triangle he was run upon and hit from behind by a train composed of an engine and a caboose approaching from the north, and running as an "extra," at a speed of about 25 or 30 miles an hour. Carter was knocked from the track and severely injured. The motor car landed on the pilot of the engine, from which it was removed after the train had stopped at a point 150 or 200 yards south of the place of the accident. The engine which hit Carter was a large engine of the type known as the 700 class. It was equipped with an automatic bell, which had been ringing since the train left Lexington. About 300 yards north of the place of the accident the engine gave the usual signal for the road crossing at the bridge south of the point of the accident. It did not, however, give a crossing signal at the signal post which stood near the place of the accident.

The proof shows that a man standing on the track at the place of the accident and looking northwardly could see the track for a distance of 300 yards. But Rose, the engineer, testified without contradiction that, being on the right or outside of the curve as he proceeded southwardly, the boiler of his engine obstructed his view as he passed around the curve to such an extent that he did not see Carter until he was within 70 feet of him, and that he then immediately put on the emergency brake, and did everything that he possibly could have done to prevent the collision.

Carter brought this action against the railroad company, Rose, the engineer, and Baker, its conductor, and obtained a verdict and judgment for $3,300 against the company. Rose and Baker were exonerated by a peremptory instruction. The company appeals.

The appellee rested his case upon three alleged grounds of negligence upon the part of the company: (1) That the train was running at a high and dangerous speed; (2) that the company failed to maintain a proper lookout for the appellee; and (3) it failed to give him timely warning of the train's approach. Many other questions, such as contributory negligence upon the part of Carter, his assumption of risk, and whether the train and Carter were at the time engaged in interstate or in intrastate commerce, have been discussed and relied upon by the company; but in our opinion the case is to be disposed of under the grounds relied upon by the appellee to sustain his judgment.

It being elementary law that negligence is the failure to perform a duty, there can be no negligence where there is no duty. Schulte's Adm'r v. L. & N. R. R. Co., 128 Ky. 627, 108 S.W. 941, 33 Ky. Law Rep. 31; C. & O. Ry. Co. v. Nipp's Adm'x, 125 Ky. 49, 100 S.W. 246; C., N. O. & T. P. Ry. Co. v. Harrod's Adm'r, 132 Ky. 445, 115 S.W. 699; Watson's Adm'r v. C. & O. Ry. Co., 170 Ky. 259, 185 S.W. 852. What was the duty of the railroad company to Carter under the facts of this case? Carter insists that the company owed him the duty of not running its train at a dangerous speed, which in this case did not exceed 30 miles an hour, that it owed him a lookout duty, thereby imposing upon the company the duty of exercising ordinary care in discovering the plaintiff's presence upon the track, and to give him timely warning of the train's approach. On the other hand, the company claims that it had the right to run its train in the country at any speed so that it did not endanger the safety of the train or its passengers; and, further, that the proof conclusively shows that the train was not running at a dangerous speed; that it did not owe appellee any lookout duty under the circumstances, but only to protect appellee after his peril was discovered; and that the engineer did everything within his power to save the appellee after his presence upon the track was discovered. We will consider the several points briefly.

This court has often declared that a railroad company owes a licensee upon its tracks no duty except to exercise ordinary care for his safety after his presence upon the track has been discovered, unless the company owes him a lookout duty. But a lookout duty arises only where the public generally with the knowledge and acquiescence of the company, have continuously used the tracks for such a period of time that the presence of persons upon the track where it is so used ought reasonably be anticipated. In such cases the company owes to persons thus using its track the duty to give warning of the approach of its train,...