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

• Decision Date: 15 June 1937
• Citation: 106 S.W.2d 973,269 Ky. 242
• Parties: CINCINNATI, N. O. & T. P. RY. CO. et al. v. FOX.
• Court: Kentucky Court of Appeals

106 S.W.2d 973

269 Ky. 242

CINCINNATI, N. O. & T. P. RY. CO. et al. v. FOX.

Court of Appeals of Kentucky

June 15, 1937

Appeal from Circuit Court, Boyle County.

Action by Kinder Fox against the Cincinnati, New Orleans & Texas Pacific Railway Company and others. From a judgment in favor of the plaintiff, the defendants appeal.

Affirmed.

Nelson D. Rodes, of Danville, for appellants.

E. V Puryear, of Danville, for appellee.

REES Justice.

The appellee, Kinder Fox, obtained a judgment for $900 against the appellants for damages to his automobile and personal injuries received by him in a railroad crossing accident in Junction City, Ky. The only ground urged for a reversal of the judgment is the alleged error of the trial court in overruling appellants' motion for a directed verdict in their favor. It is their contention that appellee was guilty of contributory negligence as a matter of law, and that the evidence failed to show any negligence on the part of appellants.

Fox was engaged in the dairy business, and made daily deliveries of milk to regular customers in Junction City. At 9:30 a. m January 22, 1935, Fox delivered milk to a customer who resided on Locust street, a short distance north of the point where a switch track of the Cincinnati, New Orleans & Texas Pacific Railroad crosses Locust street. Sixty feet south of this crossing, Locust street is crossed by the main track of the Louisville & Nashville Railroad. It was a cold day, and snow was falling. Fox testified that after making the last delivery of milk he drove south on Locust street, one of the main traveled streets of Junction City, and, as he approached the crossing, looked both to his left and right, but saw no train approaching. He was chiefly interested in observing the main track of the Louisville & Nashville, since he had rarely seen a moving engine or cars on the switch track which extended only a short distance east of the Locust street crossing. Before his automobile cleared the crossing, it was struck by a freight car going in an easterly direction and was carried down the track a distance of at least 110 feet according to plaintiff's evidence. A local freight train moving south from Danville, Ky. had stopped on the passing track parallel to the main track of the Cincinnati, New Orleans & Texas Pacific Railroad, and the engine was uncoupled from the train to do switching work at Junction City. One box car was to be spotted on the switch track east of the Locust street crossing, and it was while this car was being pushed along the switch track that the accident happened.

The appellant Will Shannon, one of the brakemen in charge of the freight train, was stationed on top of the box car to keep a lookout as it was backed along the switch. He testified that he was standing on the box car as it moved eastwardly along the switch track watching the crossing, and saw the automobile traveling south on Locust street about 100 feet from the crossing. When the driver of the automobile failed to slacken its speed, he signaled the engineer to stop. The box car struck the automobile, and stopped 75 feet east of the crossing. He could not say positively that the bell was ringing or that any other warning signal was given for the crossing. The appellant G. L. Thomas, who was the engineer testified that he left the train on the passing track and moved the engine and one box car onto the switch track. Shannon was on the box car, and another brakeman was riding on the step of the pilot next to the box car. The engine was traveling at a speed of not more than 10 miles an hour as it approached the Locust street crossing. He was unable to see the brakeman on the box car, but he got a stop signal from the brakeman on the pilot and he immediately applied the emergency brakes. The box car was then about a car's length from the crossing. The bell was ringing as the engine approached the crossing. The appellee testified that he heard no signals, and a number of witnesses who were in the vicinity and heard the crash testified to the same effect. Mrs. Tom Carter was near the freight depot which is just west of Locust street and between the switch track and the main...