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

• Decision Date: 11 February 1914
• Citation: 157 Ky. 380,163 S.W. 224
• Parties: HELTON'S ADM'R v. CHESAPEAKE & O. RY. CO. et al.
• Court: Kentucky Court of Appeals

163 S.W. 224

157 Ky. 380

HELTON'S ADM'R v. CHESAPEAKE & O. RY. CO. et al.

Court of Appeals of Kentucky.

February 11, 1914

Appeal from Circuit Court, Boyd County.

Action by Samuel Miller, as administrator of Delila Helton deceased, against the Chesapeake & Ohio Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Dinkle & Prichard and D. M. Howerton, all of Catlettsburg, for appellant.

Worthington Cochran & Browning, of Maysville, for appellees.

SETTLE J.

January 17, 1906, appellant's intestate, Delila Helton, while walking on the track of the Ashland Coal & Iron Railway Company at Summit, Boyd county, Ky. was run over and killed by a freight train belonging to and operated by the appellee Chesapeake & Ohio Railway Company, and this action was instituted by Samuel Miller, the administrator of her estate against the appellees, Chesapeake & Ohio Railway Company Grover Cleveland and Emanuel Booth, engineers, Pete Eagleton and Harry Frost, conductors, alleged to have been operating the train, to recover $30,000 damages for her death; it being alleged in the petition that her death was caused by the concurring negligence of the several appellees, mentioned, in operating the train. By an amended petition it was alleged that the decedent was killed by the train near the crossing of a public highway over the railroad track and in front of the railroad station, and that on the occasion of her death the train in approaching and passing the station gave no signal of its coming, and, in addition, was running at an unusual rate of speed. By a second amended petition it was further alleged that the decedent, though on the railroad track, was seen by those in charge of the train, or by the exercise of ordinary care could have been seen by them, in time to have stopped the train before it struck and killed her. The averments of the original and two amended petitions were traversed by answer, which, in addition, pleaded contributory negligence on the part of the decedent. The affirmative matter of the answer was controverted of record. On the trial of the case, November 29, 1912, appellees at the conclusion of the appellant's evidence moved the court to peremptorily instruct the jury to find for appellees, which motion was sustained and the peremptory instruction given. Thereupon the jury, in obedience to same, returned a verdict in behalf of appellees, and from the judgment entered thereon this appeal is prosecuted.

The single question to be decided on the appeal is as to the propriety of the trial court's ruling in granting the peremptory instruction; but, before undertaking its consideration, it will be necessary to state the salient facts connected with and surrounding the accident. It appears from the evidence that both the Ashland Coal & Iron Railway Company and the appellee Chesapeake & Ohio Railway Company operate their trains over the railroad in question, which is exclusively owned by the Ashland Coal & Iron Railway Company, but that only the trains of the latter are stopped at the station. The station does not consist of a depot building, but a mere platform or walk constructed of cinders and planks, about 5 or 6 feet in width and 40 or 50 feet in length, constructed and owned by the Ashland Coal & Iron Railway Company. At the west end of the cinder walk and about 30 or 40 feet from the point where the decedent was struck by the train, a public road crosses the railroad track and then runs some distance parallel with the railroad track on the north side thereof. The village of Summit has a population of less than 200, but there are only four or five houses in the immediate vicinity of the station, among them being the post office and one or two stores; other houses are located at a greater distance therefrom and within a radius of a half mile of the station. It further appears from the evidence that the decedent at the time of her death was residing with her brother-in-law, whose dwelling house abutted the railroad right of way on the south of the track, the gate leading into which was situated about the middle of the station platform. At 6 or 6:30 o'clock on the morning of her death the decedent left her brother-in-law's house to go to a well situated on the north side of the railroad track and county road, which there paralleled the track. After filling the bucket which she carried with water from the well, she started upon her return to the house, and in doing so walked in the county road for a short distance west, and then got upon the railroad track at a point nearly opposite the east end of the platform, and was attempting to go diagonally across the track in the direction of her brother's gate, when she was struck by the train on the main or south track at a point opposite the middle of the platform. The train by which she was killed was going west, and therefore ran up behind the decedent and struck her in the back.

It also appears from the evidence that, at the time of being killed, the decedent was taking a route across the railroad track which the public were much in the habit of using. Some witnesses introduced in appellant's behalf testified that they did not hear the train whistle before it struck the decedent; but two others, one being the postmaster at Summit and the other a resident, agreed in the statement that they heard the whistle when the train was within half a mile of the station, and yet another witness, who was standing on the porch of his residence and saw the train pass, testified that it gave two blasts of the whistle when it got within 16 or 17 rails' length, or about 500 feet, of the road crossing; but none of these witnesses was able to recollect that there was any ringing of the engine bell. All agree, however, that they heard the roaring noise made by the running of the train before it came in sight and until it reached the station, and, while several of them testified that it was running fast or "tolerably" fast, none of them stated that it was running at an unusual rate of speed. The only eyewitness to the accident was S. A. Creech, who was at the station awaiting the Ashland Coal & Iron Railway Company's train which was following immediately behind the train by which the decedent was killed, as he expected to take passage thereon to go to his uncle's in Morgan county. Creech testified that he heard the noise made by the approaching train; but, if it sounded the whistle or rang the bell, neither of these signals was heard by him. He saw the decedent cross the county road with the bucket of water in her hand, and we quote from his testimony what he had to say of the accident: "Q. Did you notice the woman when she came from behind the house? A. Yes, sir, Q. When she came out, did she step onto the railroad track? A. Well, she got on it as soon as she got to it. Q. Just as soon as she got to the track she stepped on the track? A. Yes, sir. Q. And then what track was she walking on, east or west, when she was struck? A. She was walking more in a west direction. Q. Walked west? A. Yes, sir. Q. And in the center of the track? A. Yes, sir; that is where she was when the train struck her. Q. From the time she got on the track did she continue to walk in the center of the track--west direction? A. No, sir; just walked 'kinder bias' like that, diagonally across it. Q. About how many steps did she take on the track before she was struck? A. I don't know that. Something like two or three feet in between the two tracks. Q. When she first stepped out on the track, how near was this train to her? A. Well, I would guess it would be in 20 feet of her. Q. Running fast or slow? A. Tolerably fast. Q. Did you or your uncle try to attract the attention of the woman? A. My uncle threw up his hands and hollered something just as she was stepping on. The whole thing occurred just as she stepped upon the track. It was within 20 feet of her. The whole thing occurred just in an instant."

Giving to the foregoing evidence all the weight to which it is entitled, it nevertheless failed to show that the death of the decedent was attributable to the negligence of the appellee Chesapeake & Ohio Railway Company or that of its servants in charge of the train by which she was killed. The train was running on its schedule time and not at a rate of speed so fast as to be unusual, and it is not to be overlooked that it passed the Summit station at daylight in the morning and earlier than passengers or persons would be expected to be at the station or on the railroad. Besides, the train was one which was not accustomed to stop at the station, and this, as well as the fact that it was then due to pass the...