Haley's Adm'r v. Chesapeake & O. Ry. Co.

• Decision Date: 30 January 1914
• Citation: 162 S.W. 827,157 Ky. 208
• Parties: HALEY'S ADM'R v. CHESAPEAKE & O. RY. CO. et al. [1]
• Court: Kentucky Court of Appeals

162 S.W. 827

157 Ky. 208

HALEY'S ADM'R v. CHESAPEAKE & O. RY. CO. et al. ^[1]

Court of Appeals of Kentucky.

January 30, 1914

Appeal from Circuit Court, Boyd County.

Action by Martha Ann Haley's administrator against the Chesapeake & Ohio Railway Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

L. T Everett and John F. Coldiron, both of Catlettsburg, for appellant.

Worthington Cochran & Browning, of Maysville, for appellees.

SETTLE J.

This action was instituted by appellant, as administrator of the estate of Mrs. Martha Ann Haley, to recover of the appellee Chesapeake & Ohio Railway Company, and Bolivar Wesley, its locomotive engineer, damages for her death, caused, as alleged, by the negligent operation of one of the railway company's passenger trains, of which Wesley was the engineer. Wesley died, however, before the case went to trial, and the action was duly revived against his administrator. The appellees filed a joint and separate answer, containing a traverse and plea of contributory negligence; and the plea of contributory negligence was controverted by reply. The trial resulted in a verdict for the appellees, which was returned by the jury in obedience to a peremptory instruction given by the court, on appellees' motion, at the conclusion of appellant's evidence. Complaining of the judgment entered upon that verdict and the refusal of the circuit court to grant him a new trial, the administrator has appealed.

The question presented for decision by the appeal is: Was there any evidence, however slight, introduced in appellant's behalf on the trial conducing to prove that the death of the intestate was caused by the negligence of appellee Chesapeake & Ohio Railway Company's servants in operating the train by which she was struck and killed? If there was, the peremptory instruction should have been refused. C. & O Ry. Co. v. Conley, 136 Ky. 601, 124 S.W. 861; Central Coal & Iron Co. v. Ownes, 142 Ky. 19, 133 S.W. 966. In other words, to authorize a directed verdict for the defendant, it must appear that, admitting the plaintiff's testimony to be true, and every inference fairly deducible therefrom, he has failed to support his cause of action. C., N. O. & T. P. Ry. Co. v. Rue, 142 Ky. 694, 134 S.W. 1144, 34 L. R. A. (N. S.) 200; Southern Ry. in Ky. v. Goddard, 121 Ky. 567, 89 S.W. 675, 12 Ann. Cas. 116. The above rule for determining when the giving of a peremptory instruction is admissible obtains in every action for death or personal injury, from negligence, whether the peremptory instruction be asked on the ground that there is no evidence conducing to prove the negligence of the defendant, or on the claim that the contributory negligence of the deceased or injured person is established by the evidence. Tested by the foregoing rule, it remains to be determined whether the evidence introduced by appellant in the instant case authorized its submission to the jury; but before doing this, it will be proper to mention certain undisputed facts explanatory of the manner in which Mrs. Haley lost her life.

The place of the accident was in the outskirts of the city of Catlettsburg, in a suburb called Oklahoma. Mrs. Haley was struck by a passenger train running from the east towards Catlettsburg. Within the eastern corporate limits of Catlettsburg appellees' line of railway passes over a long till, east of which the railroad is crossed by three public roadways, and the decedent was struck by the train about 325 feet west of the crossing nearest the fill; she being at the time on the fill and within a few feet of a plank walkway that led from the fill into the yard of one George Wells, whose dwelling house stood by the side of and near the railroad. At the time she was killed Mrs. Haley, in company with her stepdaughter, Mrs. Alexander, was on her way to where her husband, a carpenter, was at work on a building close to the scene of the accident. She was taking to the husband his luncheon, contained in an ordinary dinner bucket, which she carried in her hand or on her arm. At the point of the accident there was a main-line track and on the north side of it a switch track, and Mrs. Haley and her stepdaughter were walking on the main track. The fill was practically taken up with the two tracks with barely enough space for a narrow pathway on the outer side of either track; the bank of the fill on each side being almost perpendicular. Mrs. Haley and her stepdaughter each wore upon her head a light covering known as a "fascinator," and from the time of leaving the home of the former, which was situated on the side of the railroad from a quarter to a half mile from the place of the accident, they had walked the entire distance on the railroad track. For the entire distance between the point of the accident and the decedent's home, dwelling houses were numerous on each side of the railroad, and these were all occupied by the owners or tenants thereof, who, together with the public generally, were permitted and accustomed to use at all times the track of the railway company, as did the decedent and her stepdaughter on the day the former was killed.

In addition to the foregoing admitted facts, it was shown by the evidence introduced in appellant's behalf that the train by which the decedent was killed was running at a speed of 40 or 45 miles per hour; that the view of the engineer and fireman of the train in approaching the place of the accident was unobstructed for about a half mile before the decedent was killed; that the train gave no signal of its coming either by the ringing of its bell or the blowing of its whistle, until it got within 200 or 300 feet of where it struck and killed the decedent, at which time the engine sounded the alarm whistle; that immediately before the alarm whistle was given Mrs. Alexander, who was walking behind the decedent, discovered the train, which, according to her testimony, was then within 200 or 300 feet of them, and she then said to decedent: "Lord God Almighty, Mamma, get off the track! There comes the train." At the time of thus calling to the decedent, Mrs. Alexander stepped from the railroad track and slipped into the ditch beside the fill, but the decedent hurriedly walked or ran two or three steps with the evident purpose of trying to reach the walkway leading from the railroad track into George Wells' yard. From two to four steps from the walkway she was struck by the approaching train and knocked from the track and fill. According to the further testimony of Mrs. Alexander, the walkway leading into Wells' yard was only five or six steps from the point where she discovered the presence of the train and warned the decedent of its coming, and her (Mrs. Alexander's) discovery of the train was simultaneous with the sounding of the alarm whistle, but the decedent was apparently without knowledge of the coming of the train until warned by the exclamation from Mrs. Alexander.

It is claimed in argument that the ruling of the trial court in granting the peremptory instruction was based on the rule announced in the cases of L. & N. R. R. Co. v Trowers' Adm'r, 131 Ky. 589, 115 S.W. 719, 20 L. R. A. (N. S.) 380; Greshem's Adm'r v. L. & N. R. R. Co., 24 S.W. 869, 15 Ky. Law Rep. 599; Helm v. L. & N. R. R. Co., 33 S.W. 396, 17 Ky. Law Rep. 1004; I. C. R. R. Co. v. Willis' Adm'r, 123 Ky. 636, 97 S.W. 21; L. & N. R. R. Co. v. Taaffe's Adm'r, 106 Ky. 535, 50 S.W. 850, 21 Ky. Law Rep. 64; Craddock v. L. & N. R. R. Co., 16 S.W. 125, 13 Ky. Law Rep. 18--the last five cases being cited and considered in the Trowers Case. But an examination of these cases will show the facts of each to be unlike those in the instant case. In the Trowers Case it was held that one who knows and sees that a train is coming and attempts to cross the track just in front of of it at a station is guilty of contributory negligence, barring a recovery, though it was a fast special running on the time of a regular train, and he may have thought it was the regular train, which was to have stopped there. In Helm v. L. & N. R. R. Co., the injured person was a volunteer assisting the station agent. There were passengers to take the train at the station, but it failed to sound the whistle announcing its approach in time for the agent, or the volunteer acting for him, to get across the track in time to display the signal for it to stop for the passengers; nevertheless he attempted it and was struck and injured. A verdict for the defendant was directed because of the plaintiff's contributory negligence; the court holding that but for his negligence he would not have been injured. In I. C. R. R. Co. v. Willis' Adm'r, Willis, a licensee, was upon a siding on the company's road. Seeing a train approaching which he feared would frighten his horses that had been left upon the side of the main track in charge of his son, in an attempt to get to the horses he crossed the railroad track in front of the rapidly moving train which struck and killed him. Upon this state of facts, a peremptory instruction directing a verdict for the railroad company was properly granted on the ground that the death of Willis was due to his own negligence. In L. & N. R. R. Co. v. Taaffe's Adm'r, the defense was that the decedent was guilty of contributory negligence in stepping upon or so near the railroad track in front of an approaching train so close to him that it was impossible for those in charge of the train, by the exercise of ordinary care, to stop it before striking him. The judgment entered upon the verdict awarding the decedent's administrator damages was reversed because of error in the instructions; the court saying: "It was the duty of the decedent, if he had notice of the approach of the train to the...