Franklin v. Louisville & N.R. Co.

• Decision Date: 05 March 1937
• Parties: FRANKLIN v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

102 S.W.2d 1010

267 Ky. 577

FRANKLIN v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

March 5, 1937

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Graham H. Franklin, administrator of the estate of Fairleigh S. Franklin, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

W. W Downing, C. Maxwell Brown, and C.C. Will, all of Louisville for appellant.

Trabue Doolan, Helm & Helm, and Ashby M. Warren, both of Louisville, for appellee.

PERRY Justice.

Fairleigh S. Franklin, at about 7 o'clock on the Sunday evening of August 11, 1935, while driving alone in his coupé along Chenoweth lane in St. Matthews, Ky. was killed at a public crossing, when the engine of a freight train of the appellee, Louisville & Nashville Railroad Company, struck his coupé while stalled on the crossing.

Upon a trial of the action brought by his administrator for the recovery of damages for his death, there was a verdict and judgment rendered for the defendant company.

The administrator, dissatisfied with this judgment, has appealed.

The conditions and circumstances under which this accident occurred at the Chenoweth lane railroad crossing are for the most part undisputed and are as follows:

Chenoweth lane is a roadway connecting the Brownsboro road with the Louisville and Lexington highway and is intersected by a branch line of the defendant company, running in an eastwardly and westwardly direction between Covington and Louisville, which at the point of intersection with this lane has two main line tracks and an intermediate "passing" track.

It appears that St. Matthews is a populous unincorporated suburb of the city of Louisville, lying very near the eastern limits of that city and that by reason of its location in this populous community, Chenoweth lane is subjected to a very heavy and congested traffic along its way, leading over the intersecting railroad crossing, its volume of travel being such as to have caused the railroad to establish at the crossing, on each side thereof, electric "flasher lights" and also an electric bell, which automatically work as warning signals upon a train's coming within some 2,500 feet of the crossing, after which the signal lights and bell continue flashing and ringing until the oncoming train passes the crossing.

It is admitted that these mechanical signals were upon the occasion in evidence in good working order and very effectively served to warn the traveling public at or near the crossing of the oncoming train's approach.

It is further shown that to the east of this Chenoweth lane crossing there are some three other nearby railroad crossings (at St. Matthews, Produce, and Ridgeway) located some 1,300 feet apart, at each of which on this occasion the freight train blew the proper crossing signals, which were heard by travelers also at the Chenoweth crossing.

The testimony of the witnesses is further that appellant's intestate reached this railroad crossing either just before or immediately after the crossing signals began to work, warning him that a train from the east was then approaching it, despite which he proceeded to drive his car onto the crossing, when it was stopped or stalled on the track upon which the freight train was then approaching at a speed of some 30 to 35 miles per hour.

The evidence is further that for a brief moment, when on the crossing, deceased attempted to get his car started and then, a few seconds before the on-coming train reached him, attempted to leave it, but too late and the engine struck the car and killed him.

The evidence is undisputed that during this minute's period of the intestate's negligently and recklessly remaining in his car while stalled on the crossing, the crossing signals continued to clamorously warn him of the on-coming train; that a by-stander was shouting to him to get out of the car, the train was coming; also, that the engineer of this train, although he had just blown the three near crossing signals, upon discovering the deceased's peril at the crossing, when then some 575 feet distant therefrom, had at once applied the emergency brakes and sounded the distress whistle, using unavailingly all the means then at his command to avoid injuring the deceased.

There is no dispute as to this, its being testified by all the witnesses that the engineer of the on-coming train, when reaching such point (where he testifies he first discovered the car on the track ahead), did everything in his power and at his command to avoid injuring the deceased.

The contention is made, however, that the defendant's engineer was negligent in not sooner beginning to stop his train, when some thirteen or fourteen hundred feet east of the crossing, where it is claimed, if he were at such place observing his duty of keeping proper lookout, he could have seen deceased's car standing on the crossing. Appellant contends that the exercise of ordinary care in driving his engine required him to then slacken its speed, so as to bring it under such control as would have enabled him to stop the train, if found necessary to avert injury to deceased at the crossing.

Upon this point, however, the evidence for the defendant is that its engineer did not and could not there see the crossing, nor, due to the curving course of the railroad tracks east of the crossing, was it posible for those in charge of its train to discover the presence of this car upon the crossing when thirteen or fourteen hundred feet distant therefrom, as claimed by appellant, nor were they able to at all discover the presence of the car on the tracks at the crossing before reaching a point some 1100 feet therefrom; that no one could in fact have discovered that the deceased's car had stopped or was stalled on the particular track upon which the train was then approaching, nor could those in charge of its train do so until within some 575 feet of the crossing, when they then and there first discovered the car's dangerous position on the track ahead at the crossing and did everything humanly within their power to warn and avert the injury to deceased.

Upon the conclusion of the introduction of this evidence, each party offered instructions presenting their theory of the law applicable to the issues made by the pleadings and evidence, which were refused by the court, when upon its own motion it instructed the jury.

Appellant complains of the court's given instruction No. 1, whereby the court submitted the case on the last clear chance doctrine, holding as a matter of law that the deceased was guilty of contributory negligence, preventing a recovery unless the agents of the defendant company could have prevented the accident after the engineer in charge of the train discovered, or,...