Conway v. Louisville & Nashville R. R. Co.
| Decision Date | 09 November 1909 |
| Citation | 135 Ky. 229 |
| Court | Kentucky Court of Appeals |
| Parties | Conway v. Louisville & Nashville R. R. Co. |
Appeal from Franklin Circuit Court.
Judgment for defendant, plaintiff appeals. — Affirmed.
IRA JULIAN for appellant.
McQUOWN & BECKHAM for appellee.
BENJAMIN D. WARFIELD of counsel.
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The appellant, South Conway, a boy about 11 years old, brought this action against the appellee railroad company to recover damages for injuries received in a collision between a horse he was riding and one of its trains which was going east. Upon the conclusion of the evidence for the plaintiff the jury, under the direction of the court, returned a verdict in favor of the defendant company, so that the only question before us is whether or not there was sufficient evidence introduced on behalf of the plaintiff to take the case to the jury.
The negligence complained of in the petition as amended consisted in the failure of the train with which Conway's horse collided to give at the usual point, which was some distance west of the place the accident occurred, the statutory signals of its approach to a grade crossing, and the failure of the engineer in charge of the train to exercise ordinary care to prevent injury after the peril of Conway was discovered. The substantial facts shown by the evidence introduced for the plaintiff are these: South Conway, an intelligent boy, lived with his father in a house situated on the north side of the railroad track a few yards from the point where a public road that runs east and west crosses the railroad at grade. On the south side of the railroad there is a road that intersects the county road a short distance south of the crossing, and runs west from the county road parallel with the railroad and a few feet distant from it for some 200 yards, and then goes down an embankment into a creek. On the day of the accident young Conway, desiring to water one of his father's horses, rode it across the railroad, and thence on the road parallel with the railroad to the creek. When he had watered the horse, and was on his way back home, riding along the road that runs by the side of the railroad, and at a point about 75 yards west of the crossing, a freight train, going at a high rate of speed in the same direction that Conway was riding, came up behind him and frightened the horse, causing him to run off. The horse ran towards the crossing, and reached it about the time that the engine did, and was struck by some part of the train; the collision throwing Conway off and breaking his arm. Conway had frequently ridden this horse to water along the same road, and had often met trains about the same place, but the horse had never before become frightened by them.
The law in respect to the duty of trainmen when they come upon a frightened horse being driven or ridden on a parallel road is well stated in L. & N. R. R. Co. v. Smith, 107 Ky. 178, 53 S. W. 269. In that case the horse that Smith was driving on a road parallell with the railroad became frightened at the whistling of an engine, and ran away, injuring the driver. The lower court instructed the jury that they should find for Smith if they believed the employes on the train knew, or by the exercise of ordinary care could have known, that the whistling would cause the horse to run off. In holding this instruction erroneous the court said: In C., N. O. & T. P. Ry. Co. v. Bagby (Ky.) 29 S. W. 320, in considering a case very much like the one before us, the court said: "It would therefore seem to follow that an engineer cannot be reasonably expected or required to look out for, or see, animals at all distances on each side of a railroad track, nor give the danger signals and stop the train to prevent injury to those straying, unless such animal is actually on the track, or else so near or in such attitude as would induce a person of ordinary care and prudence to believe there was danger of a collision.
In this case the engineer did not discover appellee's horse until the train was too near to the private crossing to be checked in time to prevent the collision. * * * Conceding the horse might have been seen by the engineer at any point between appellee's gate and the crossing, still he was not required to stop the train unless he had reasonable grounds to believe the horse would be permitted by its owner to go upon the track in front of the train. It seems to us the engineer was not in this case guilty of actionable negligence, for it does not appear that he saw the horse, or had reasonable grounds to believe it would go upon the track in front of the train until it was about to jump on it." In L. & N. R. Co. v. Bowen (Ky.) 39 S. W. 31, the court, in considering a like question, said: "It would therefore seem to follow that an engineer cannot be reasonably expected or required to look out for, or to see, animals at all distances on each side of the railway track, nor to give the danger signal and stop the train to prevent injury to those straying, unless such animal be actually on the track, or else so near or in such attitude as would induce a person of ordinary care and prudence to believe that there was danger of a collision." To the same effect, Kean v. Chenault, 41 S. W. 24; C. & O. Ry. Co. v. Pace (Ky.) 106 S. W. 1176; L. & N. R. Co. v. McCandless, 123 Ky. 121, 93 S. W. 1041.
The rule to be deduced from these cases is that the persons in charge of an engine are not under any duty to take notice of the conduct or fright of a horse on a parallel highway, or to stop or slacken the speed of the train to avoid a possible collision, unless it is so close to the railroad that the persons in charge of the engine could by the exercise of ordinary care discover that the horse is frightened, and the attitude of the horse or the immediate conditions are such as would lead a person of reasonable prudence to believe there was danger of a collision. The mere fact that the ingineer saw Conway riding along the parallel road did not require him to check his train, or sound any signal or warning, or take any precaution to avert an injury at the crossing, unless he knew, or by the exercise of ordinary care could have known, that the horse was frightened and running away, and the circumstances were such as to induce a person of reasonable prudence to believe that he would attempt to cross the track in front of the train or come in contact with it at the crossing. But we do not find in the record any evidence or circumstance that would justify us in saying that the engineer was negligent in failing to take any action to avoid a collision with Conway. If we should assume — and it would be a mere assumption — that the engineer saw, or in the exercise of reasonable care should have seen, the fright of the horse, there is a total failure to show any fact or circumstance from which it could be reasonably inferred that by the exercise of ordinary care, or any degree of care, the engine could have been stopped or the speed of the train slackened so as to have avoided the collision after the fright of the horse was, or should have been discovered. It is therefore manifest that, so far as this charge of negligence is concerned, it was not supported by sufficient evidence to warrant a submission of the case to the jury.
The next question is: "Was the injury due to the failure to give the crossing signals? It is by statute made the duty of all trains to give the statutory signals of their approach to a grade crossing, and the failure to give these signals is actionable negligence for which a recovery may be had by any person injured by a breach of duty in this respect. It is also true that travelers upon a public highway that crosses a railroad have the right to rely upon these signals for protection, although the failure to give the signals does not relieve the traveler from the duty of exercising ordinary care for his own safety; for, if by the exercise of ordinary care a traveler could see or hear an approaching train, he will be guilty of such contributory negligence as would defeat a recovery if he goes upon the crossing and receives an injury, although the signals were not given. Generally, the question of contributory negligence is for the jury, but a state of facts might be presented that would authorize the court to take the case from the jury. To illustrate: If it were shown that by exercising ordinary care a traveler could discover the approach of a train, and he testified that he did not take any precautions to learn whether a train was coming or not, and failed to offer any evidence upon this point, he could not recover, although the statutory signals were not given, unless it appeared that after his peril was discovered the persons in charge of the train could, by the exercise of ordinary care, have avoided injuring him. Southern Ry. Co. v. Winchester (Ky.) 105 S. W. 167; C., N. O. & T. P. Ry. Co. v. Champ (Ky.) 104 S. W. 988, 31 R. 1054. This rule, however, would not be applied if the traveler was killed, and there...
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