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

• Decision Date: 12 March 1937
• Citation: 267 Ky. 661,103 S.W.2d 91
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. WALLACE'S ADM'R.
• Court: Kentucky Court of Appeals

103 S.W.2d 91

267 Ky. 661

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

Court of Appeals of Kentucky

March 12, 1937

Appeal from Circuit Court, McCreary County.

Action by Joe Wallace, administrator of the estate of Nannie Mary Wallace, deceased, against the Cincinnati, New Orleans &amp Texas Pacific Railway Company. From a judgment for plaintiff defendant appeals.

Reversed with directions.

Tye Siler, Gillis & Siler, of Williamsburg, for appellant.

R. L Pope, of Knoxville, Tenn., and G. W. Hatfield, of Whitley City, for appellee.

THOMAS Justice.

There is an unincorporated settlement, forming a very much scattered village in McCreary county, Ky. known as Flat Rock. There are, according to all the proof in the case, only between 20 and 25 houses of every kind and description throughout the village, and they are located on either side of the right of way of the appellant and defendant below, Cincinnati, New Orleans & Texas Pacific Railway Company, for a total distance along its tracks of more than one-half mile. Perhaps 90 per cent or more of the people who occupy the residence buildings are employees of the defendant. Some of the residences are section houses, while others are occupied by employees of defendant working in other capacities. The other buildings forming the total number are small business houses, and defendant's depot. The largest number of people, all told, who reside in the settlement, or village, according to any witness is from 60 to 75.

The right of way of defendant, and the track thereon, run north and south and practically straight from a point south of the depot to a point north of it beyond a public road that crosses the track at right angles, while there is a county road crossing (but not a public road) just north of the depot, and the distance between it and the public road north of it is as much as, or more than, one-half mile. Along the distance between those two roads are located most of the houses in the village and they are practically evenly divided as to their location, i. e., about as many are located on the east side of the right of way as there are on its west side.

Some five or six rail lengths (a rail being 39 feet) south of the public road crossing and on the west side of defendant's right of way the appellee, Joe Wallace, and his wife and their son, about 19 years of age, resided. The front part of their residence is some 25 or 30 feet from the west line of the right of way, along which was a wire fence inclosing the right of way, as was also true along its east line. About opposite the Wallace residence, and on the east side of the right of way, was located the residence of a Mr. Renolds.

Some time during the day of July 12, 1935 (the hour not being shown, except that it was in daylight), Mrs. Wallace, who was 62 years of age, left her home, intending to cross the right of way and the four tracks thereon to the Renold's residence. Her husband was on the porch of their residence when she started and saw her go through a gate in the right of way fence, when he immediately went back into the house to get a drink of water, at which time he heard a train coming from the south on the northbound track, which was the extreme east one (the southbound track being the one immediately adjacent to it on the west) and which he said was making a noise like unto the "roaring of a storm." That noise was also proven by every witness appearing in the case. He then turned his attention toward his wife who was continuing her journey over and across the railroad tracks, and when she was about to cross the east rail of the southbound track, he observed her turn her head south toward the approaching train. She then immediately increased her speed and succeeded in getting upon the northbound track and was in the act of stepping over its east rail when the train struck and injured her, from the effects of which she died eight days thereafter. He testified that when his wife looked to the south, as she was leaving the northbound track, and when she began to increase her speed, the train was then some five or six rail lengths south of her, and, according to his opinion, it was traveling something like 60 miles an hour. Other witnesses who were not experts, as was also true of Wallace, fixed the speed at about 50 miles per hour. The train was a manifest freight train, carrying a cargo of many cars loaded with fruit from the south to the north.

Plaintiff afterwards qualified as the administrator of the estate of his wife and filed this action against defendant to recover damages sustained to her estate because of her death, which he alleged was due to defendant's negligence through the failure of its agents and servants operating the train to observe certain enumerated requirements that the pleader concluded were enjoined upon them for the safety and protection of any one who might be using the right of way as a crossing at that point, as decedent was then doing. It was also alleged that at the place where she was injured there was, and had been for a number of years, a foot pathway over which pedestrians in crossing the right of way and tracks from one side to the other traveled. The alleged omitted requirements were that the servants of defendant in charge of the movement of the train, failed to keep it under reasonable and proper control, or to maintain a look-out for pedestrians accustomed to cross the tracks at that point; that they failed to give the proper signals as they approached the path over which decedent was traveling; and that such failures on their part "co-operating, and co-ordinating and commingling the one with the other, were the direct, proximate and prime causes of her said injuries and consequent death," whereby her estate was damaged in the sum of $2,999, for which amount plaintiff prayed judgment.

Defendant's answer was a denial, coupled with a plea of contributory negligence, the latter of which was controverted, and at the trial there was a verdict in favor of plaintiff for $1,000, upon which judgment was rendered. Defendant's motion for a new trial was overruled and it prosecutes this appeal, seeking a reversal upon a number of grounds, as alleged errors, chief among which are, (1) that the court erred in overruling defendant's motion for a peremptory instruction in its favor, made at the conclusion of plaintiff's testimony, and (2) error in the instructions given by the court on the motion of plaintiff's counsel over defendant's objections and exceptions. Defendant introduced no testimony, but consented, after its motion for a peremptory instruction was overruled, for the cause to be submitted to the jury, on that introduced by plaintiff. If ground (1) is sustainable, which we are clearly convinced is true, then it becomes unnecessary to discuss in detail ground (2). We will therefore first proceed to a discussion and determination of ground (1).

It would entail great labor to answer in detail all arguments of counsel for plaintiff in his efforts to sustain the judgment. He contends that the existence of the path across defendant's track at the place decedent was injured imposed the duty upon those operating defendant's trains to not only maintain a lookout on approaching it, but also to have defendant's train under such control, including speed, as to render it possible to avert injuring one who might be traveling the path, and that the conditions imposed...