Clere's Adm'r v. Chesapeake & O. Ry. Co.
| Decision Date | 23 March 1934 |
| Citation | 70 S.W.2d 16,253 Ky. 700 |
| Parties | CLERE'S ADM'R v. CHESAPEAKE & OHIO RY. CO. et al. |
| Court | Kentucky Court of Appeals |
As Modified on Denial of Rehearing April 27, 1934.
Appeal from Circuit Court, Boyd County.
Suit by the Administrator De Bonis Non with the will annexed of the estate of Raymond D. Clere, deceased, against the Chesapeake & Ohio Railway Company and others. From a judgment on a verdict returned in accordance with a peremptory instruction for defendants, plaintiff appeals.
Reversed.
Watt M Prichard, of Catlettsburg, and Waugh & Howerton, of Ashland for appellant.
Browning & Davis, of Ashland, for appellees.
Thirty-second street in Ashland runs north and south. It is crossed by two railroad tracks of the appellee, the northerly track being used for west-bound trains and the southerly track for east-bound trains. These tracks approach Thirty-second street from the east in quite a curve. Thirty-second street is paved with brick. To the south of the railroad tracks it is 20 feet wide; to the north it is 16 feet wide. This latter part of the street is located a little further to the west than the part to the south of the tracks, and hence the crossing at Thirty-second street is constructed on the bias in order to meet the offset between the two parts of the street. The crossing for vehicles is constructed of macadam. There is to the east of this macadam crossing a walk constructed of wood for the use of pedestrians. Between this walk and the macadam crossing is a portion of the tracks left in their natural condition. There is a joint in the southern rail of the northern track of the railroad. This joint is immediately adjacent to the macadam crossing. Wires for the purpose of carrying the electric current that works the automatic warning signals erected at this crossing reach around this joint from the rail on the one side to the rail on the other. On the night of December 6, 1930, appellant's decedent, Raymond D. Clere, was driving a Buick sedan in a northerly direction along Thirty-second street towards this railroad crossing. In the car with him was his brother-in-law, Dock Banks, whom Clere was taking to the street car. The machine had been acting queerly, jumping and bucking; perhaps because the engine was cold and the carburetor not working properly. As they approached the railroad crossing, Banks, who was seated on the front seat next to Raymond Clere, noticed that a red flasher light erected by the railroad at this crossing for the purpose of warning travelers of the approach of trains and which flashed off and on while trains were within the block in which this crossing was located was flashing. About the same time he noticed a light down the tracks towards the east, and heard a bell ringing. He remarked to Raymond Clere that the red lights were flashing and that he thought he heard a train coming. Clere made no response but drove his car onto the crossing. When the car got on the northern track of this crossing, it stalled and Clere was unable to make it go any further. Banks seeing a train coming from the east on the track upon which they were stalled, jumped out of the machine and with waving arms ran up the track about 35 or 40 feet when the engine passed him. The engineer of the train who claims he was keeping a lookout, says that about this time he discovered the machine stalled on the track and immediately did all he could to stop the train and did so within 175 feet. The train at that time was going about 15 miles an hour and the undisputed proof shows that the stop which this engineer made was a very good stop indeed. Of course, the engine hit the automobile and knocked it down the track. When the train came to a stop, the tender was yet on the crossing and the front trucks of the baggage car had just passed over the joint in the rails to which we have heretofore referred. The engineer got...
To continue reading
Request your trial