Cincinnati, N.O. & T.P. Ry. Co. v. Harrod's Adm'r

• Decision Date: 13 January 1909
• Citation: 115 S.W. 699,132 Ky. 445
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. HARROD'S ADM'R.
• Court: Kentucky Court of Appeals

115 S.W. 699

132 Ky. 445

CINCINNATI, N. O. & T. P. RY. CO. v. HARROD'S ADM'R.

Court of Appeals of Kentucky.

January 13, 1909

Appeal from Circuit Court, Scott County.

"To be officially reported."

Action by Harry Harrod's administrator against the Cincinnati New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff, defendant appeals, and, from an order setting aside a former verdict and granting a new trial, plaintiff took a cross-appeal. Order granting a new trial affirmed, and judgment for plaintiff reversed and remanded for new trial.

Bradley & Bradley and Galvin & Galvin, for appellant.

B. F Proctor, G. H. Herdman, and R. L. Greene, for appellee.

O'REAR J.

Harry Harrod was a brakeman in the employ of the Southern Railway Company. The latter company and appellant railway company use the same yard tracks for switching at Georgetown. In the month of February, 1904, early in the morning, about 6 o'clock, Harrod and others of the crew in charge of a Southern train were shifting cars on these tracks at Georgetown, in which they had occasion to use the main track of the appellant road. There was a through passenger train due on appellant road passing from the south through Georgetown at 6:19 a. m. It was known as No. 4. For that train Georgetown was a flag station at which the train did not stop, unless it was signaled to do so for accommodation of through passengers to or from that point.

On this morning in question that train was behind time. Harrod was sent to the station to learn what time it would be due in order that he and others of his crew might govern their actions by the information, so as to keep out of the way. He returned, and reported that it was 30 minutes late; that it would go through Georgetown at 6:50 a. m. His crew then went ahead with their work, clearing appellant's main track some minutes prior to 6:50 a. m., so as to leave that track free for the passenger train. But they had other switching to do in its immediate vicinity, which they proceeded with. Harrod was operating the switch, and giving signals to the engineman of his train as to its movements. The switch was on a track parallel to appellant's main track and some nine feet distant from it. The siding on which decedent's train was operating in part had a curve, so that the engineer in charge of his engine when it was some distance to the south could not easily see one giving the signal from the switch if given on the east side of the track, but could have seen if given from the west side--the one on which the switch standard and lever were located. Harrod's engine then had some four or five freight cars coupled to it, and he was in the act of causing a running switch, called "kicking" the car, to be executed. The bell of his engine was ringing, and the engine was also "popping off" steam. Of course, there were other usual noises incident to switching freight cars. The morning was very cold, though clear, and there was a southwest wind blowing. Harrod had his cap pulled down over his ears to protect them from the cold. He had had about four years' experience as a freight brakeman. When he had thrown the switch after the engine and cut of cars passed over it leading south, he stepped across from behind the passing cars, "cut" the car that was to be kicked onto a siding, and then crossed on east onto the main track of the appellant road, where presumably he intended giving his engineer an appropriate signal for his next movement. At this instant train No. 4 running at a high rate of speed, passed upon the main track, going north. It was precisely 6:50 of the clock a. m. Harrod was struck by it and instantly killed. This suit was brought by his administrator to recover damages for the destruction of his life, in which it is charged that his death was caused by the negligence of those in charge of train No. 4, in that they failed to give proper signals of its approach, and ran it at too high a rate of speed to be consistent with the safety of those rightfully upon the tracks at that point. There were two trials. The first resulted in a verdict for appellee for $20,000 damages. That verdict was set aside by the trial court on the ground that it was excessive. The next resulted in a verdict for appellee for $5,000 damages. From the judgment upon the latter verdict this appeal is prosecuted, while appellee prosecutes a cross-appeal to have the action of the trial court reversed in setting aside the first verdict and judgment.

The first question is: Should there have been a peremptory instruction, upon appellant's motion, to find for it? Harrod was rightfully using the tracks of the yard at Georgetown. He had the same right there, and was, we apprehend, under the same obligations as to when and how he should use them as if in appellant's employ. A great deal of the evidence admitted bore upon the situation of certain crossings in the vicinity of the accident, and of the population of Georgetown, the location of the depots, and so forth. The theory of appellee's case was that, if the situation was such as required certain signals of warning to be given by moving trains at or near that point, appellee's intestate was entitled to rely upon their being given, and, if they were not given, it was negligence as to him, in addition, and in the same line, that the situation required a modified rate of speed to be maintained at or near that point by passing trains, so as to avoid injuring people who had a right to be at or near that point on the appellant's tracks, and whose presence therefore must have been anticipated and provided against. Further stating the facts so as to get at the exact questions here presented: The main track which No. 4 was using, coming from the south, was for nearly half a mile south of the Georgetown station, perfectly straight, and nearly level, though for most of the way it passed through a cut. Harrod was killed about 500 feet south of the passenger station. Immediately south of the passenger station, or say 450 feet north of where Harrod was struck, was appellant's freight depot, which is on the opposite side of the track from the passenger station. There is a much used passway across to the freight depot and stockpens. About 1,100 feet south of where Harrod was struck is a turnpike crossing, known as the Lemon's Mill pike crossing, which is just outside the corporate limits. Just south of that crossing, and on or near a curve in the main line, is the whistling post for Georgetown station. There are no houses between where Harrod was struck and the Lemon's Mill pike crossing. Much evidence was introduced as to the extent of the public's use of the Lemon's Mill pike crossing, and of the one at the freight depot. There was also evidence submitted that Georgetown had a population of 3,500, and a suburb to the north had a population of 500. All of this, as has been said, was to fasten upon appellant the duty of regulating the speed of its trains and giving warning signals at these points.

Railroad owners may be, and in many instances are, under entirely different standards of duty toward their own employés and the public. This difference is not based at all upon any different regard of the law for these two sets of people; for in the eyes of the law the lives and safety of one are as much desired as the other. But the difference rests upon a sound distinction. In the one case there is no assumption of risks--there is no consideration for any. In the other there is. Not that the latter bargain away their safety at all, but they know that the very work about which they are engaged is inherently hazardous, and as ordinarily conducted, even with the best of appliances, is fraught with great and imminent danger to life. They know better then anybody else the necessity for keeping in safe places where such are provided, so that passing trains cannot injure them. They know the custom of railroads in running their trains at high rate of speed--that speed is the very essence of successful railroading, its maximum rate regulated principally, if not almost entirely, as to the safety of the train and its occupants. They know this is especially true of through passenger trains. They know it as a fact, so general as to be almost universal. The railroad operative has an option whether he will engage in that service. The public have little or no option as to what highways they must travel. The public policy has been and is to require railroad companies to give certain warning signals at the highway crossings. Why? In order to apprise travelers upon the highways about to use the crossing that the railroad train was approaching and about to pass over it, so that the former might, as they probably could, by stopping their vehicles, keep out of the way of the train, or, if pedestrians, keep off the track...