Cox's Admr. v. C., N.O. & T.P. Railway Co.

• Decision Date: 10 March 1931
• Parties: Cox's Administrator v. Cincinnati, New Orleans & Texas Pacific Railway Company et al. (Two Cases.)
• Court: United States State Supreme Court — District of Kentucky

238 Ky. 312

Cox's Administrator v. Cincinnati, New Orleans & Texas Pacific Railway Company et al. (Two Cases.)

Court of Appeals of Kentucky.

Decided March 10, 1931.

1. Railroads. — Doctrine requiring one crossing railroad tracks to stop, look, and listen is not in effect in Kentucky (Ky. Stats., sec. 786).

2. Railroads. — That decedent did not stop, look, or listen before crossing railroad did not constitute contributory negligence precluding recovery against railroad for his death (Ky. Stats., sec. 786).

3. Railroads. — That person injured on railroad, where he had right to be, carlessly imperiled his own life, will not be presumed.

4. Negligence. — Negligence will never be presumed.

5. Railroads. — Railroad has burden of proving contributory negligence of persons killed in crossing collision.

6. Railroads. — Testimony that decedents, when driving on railroad crossing, were looking in opposite direction from which train was backing, did not authorize peremptory instruction for railroad.

Testimony that decedents were looking in the opposite direction from which the train was approaching was conflicting, and it was shown that the railroad's employees failed to ring the bell or sound the whistle alternately and continuously, which was calculated to induce decedents to believe that the train was not approaching or intending to use the highway crossing.

7. Railroads. — Where decedents were killed in railroad crossing collision, evidence of frequent public use of crossing and of speed of train was competent as bearing on care exercised by railroad.

8. Evidence. — Witnesses could testify as to frequent use of railroad crossing, where giving facts upon which they based their statements.

9. Railroads. — In action for death from railroad crossing collision, whether crossing was extraordinarily dangerous held for jury.

10. Railroads. — In action for death from railroad crossing collision, if crossing was extraordinarily dangerous, high degree of care was required of all parties.

11. Railroads. — If train operatives knew for reasonable time prior to collision that crossing was dangerous and much used by public, they owed duty as ordinary prudent persons, in addition to giving statutory signals, to maintain proper lookout and to avoid injuring persons using crossing (Ky. Stats., sec. 786).

12. Railroads. — Decedents, killed in crossing collision, owed duty to take such care for their own safety as reasonably prudent person would exercise under circumstances.

13. Death. — If failure of decendents, killed in crossing collision, to exercise care of ordinarily prudent person was proximate cause of death, administrators could not recover therefor.

14. Railroads. — Railroad was liable for decedents' deaths in crossing collision even if decedents were negligent, if railroad's negligence placed decedents in peril and their peril was or should have been discovered by train operatives, by ordinary care, in time to avoid collision.

15. Railroads. — Railroad was not liable for deaths of decedents in crossing collision if decedents' own negligence placed decedents

in peril, and train operatives could not have avoided collision by exercising ordinary care.

16. Negligence. — Automobile guest is not responsible for driver's negligence, unless relationship making guest responsible for negligent acts of others exists.

17. Negligence. — Husband's negligence in driving automobile is not imputable to wife, who is guest, merely because of relationship.

18. Negligence. — If automobile guest knew of driver's negligence soon enough to enable her to avoid collision, her failure to do so would make driver's negligence imputable to her.

19. Negligence. — If automobile guest had no opportunity to avoid consequences of driver's contrfibutory negligence, it cannot be imputed to her.

20. Railroads. — If automobile guest's death in crossing collision resulted solely from driver's negligence, railroad was not liable therefor.

Appeals from McCreary Circuit Court.

STEPHENS & STEELEY for appellants.

TYE, SILER, GILLIS & SILER for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

About 8 a.m. on June 24, 1929, S.T. Cox and his wife, Zelpha Cox, while traveling in a Chevrolet coupe on the highway which crosses the tracks of the appellee at a station called Revilo, in McCreary county, were struck and killed by a train of the Cincinnati, New Orleans & Texas Pacific Railway Company, which train consisted of an engine, coal tender, and one car.

The administrator of Zelpha Cox was duly appointed, qualified, and filed an action to recover damages for her estate, resulting from her death, against the appellees, Cincinnati, New Orleans & Texas Pacific Railway Company, Fayette Thompson, and _______ Smith, who were the engineer and fireman, respectively, on the train which struck the automobile in which she was traveling.

The administrator of S.T. Cox was duly appointed and qualified and filed an action to recover damages resulting from S.T. Cox's death, against the appellees. By agreement the two actions were consolidated and heard together. At the conclusion of appellants' evidence, on motion of the appellees, the court gave to the jury a peremptory instruction to find for them. Judgment was entered on this verdict, dismissing the petitions with cost. From it, this appeal is prosecuted.

Revilo is a station on the Cincinnati, New Orleans & Texas Pacific Railway, situated on the outskirts of Stearns, an unincorporated town in McCreary county. S. T. Cox and Zelpha Cox resided in the vicinity of this crossing, on the Pine Knot road. They were familiar with this crossing. The highway crosses the railway tracks on a grade. The Highway is known as "The Airline to Lookout Mountain Route from Cincinnati to Chattanooga."

The highway runs practically parallel with the railroad through the county in a northern and southern direction. It is in sight of the railway tracks from three-quarters to one mile south of Revilo. There are three tracks at this crossing. The north-bound is on the east, the storage in the middle, and the south-bound is on the west. As the highway comes from the south at about 150 feet of the crossing, it makes a right angle turn to the left. On the left of it is a garage building. The storehouse, dwelling, and a few trees are located right along the highway. The garage is 150 to 200 feet south of the store, and on the east side of the railroad. The highway, after you turn to the right, goes down a grade. On the righthand side of it, there are two section houses and an embankment. The embankment is higher at section house No. 2 than at section house No. 1. A fence runs down from the right of the ground on which these section houses are built to within a few feet of the north-bound track. As a car approaches from the south on this highway, its occupants are unable for a short distance to see a train that comes from the north until they are within a few feet of the north-bound track, or within about 12 feet of it. The track some 200 or 250 feet to the south of the crossing curves to the right. The track north of the crossing comes out of what is known as "Sand Cut," estimated to be 30 to 35 feet deep and situated on a curve. "Sand Cut" was cut out of the surface of the ground for the purpose of grading the track.

At the time of the accident, the train which struck and killed decedents was backing toward the crossing from Sand Cut, which is about 800 or 900 feet north of the crossing. The rate of speed at which it is estimated to have been traveling varies from 15 to 35 miles per hour. The automobile came along the highway on the east side of the north-bound track, turned to the left passing through a cut in the road, crossed the north-bound track, and as they approached the south-bound track, the car in which they were traveling was struck. Mrs. Cox was instantly killed and Mr. Cox died within about two hours. As they turned to the left to approach the crossing, the section houses were on their right and on the property of the railway company, and were at that time occupied by employees of the railway company. These section houses cut off their view, looking north toward Sand Cut, of the train as it was backing from Sand Cut toward the crossing. No employee of the railway company was on the back end of the train. The whistle was blown twice for the crossing about the time it came out of Sand Cut. The whistling post is 825 feet from the crossing. No other whistle was blown, and no bell was rung or other signal given to indicate the presence of the movement of the train or to indicate the intention of those in charge of the train to use the crossing.

The testimony as to whether deceased S.T. Cox, who was driving the automobile, at the time he drove onto the north track, was looking to the south, or down the track opposite the direction in which the train was backing, or directly across the track, varies. The engine of the train of cars was between the tender and caboose, on the opposite end from the crossing. The testimony as to whether S.T. Cox increased his speed before or at the time the car was struck, or continued at the same rate at which they approached the north-bound track, is conflicting. The deceased S.T. Cox was somewhat deaf.

The question presented on this appeal is: Did the court err in giving a peremptory instruction?

The appellee insists that both S.T. Cox and Zelpha Cox were guilty of contributory negligence, and therefore their estates are precluded from a recovery, and the giving of the peremptory instruction was proper. To sustain this contention they cite the cases of Long Fork Ry. Co. v. Martin, 212 Ky. 182, 278 S.W. 550; Cumberland River Ry. Co. v. Walton, 166 Ky. 371, 179 S.W. 245; Barrett's Adm'r v. L. & N.R.R. Co., 206 Ky. 662, 268 S.W. 283; Taylor's Adm'r v. K. & T. Ry. Co., 229 Ky. 129, 16 S.W. (2d) 785; Voorheis' Adm'r v. Chesapeaks & O.R.R. Co., 220 Ky. 746, 295 S.W. 1031; ...