Hensley v. Braden

• Decision Date: 19 November 1935
• Parties: Hensley et al v. Braden.
• Court: United States State Supreme Court — District of Kentucky

Page 672

262 Ky. 672

Hensley et al v. Braden.

Court of Appeals of Kentucky.

Decided November 19, 1935.

1. Trial. — In action by passenger in taxi against taxi driver and railroad for injuries, taxi driver's right to peremptory instruction must be disposed of on proven facts and circumstances as they concern him and passenger.

2. Carriers. — Passenger alighting from taxi cannot close his eyes to obvious danger or to danger as easily seen by, or as well known to him as to driver, and intrust his safety absolutely to driver, but must exercise ordinary care for his own safety and must see and hear that which ordinarily prudent person, in similar circumstances, should see and hear (Ky. Stats., sec. 2739g-35).

3. Carriers. — Taxi driver must exercise ordinary care, or care in proportion to danger likely to be encountered to see that place selected for discharge of passengers is safe for that purpose.

4. Carriers. — Taxi driver transporting passengers over highway must exercise highest degree of care for passenger's safety and protection.

5. Carriers. — Taxi driver need not warn passenger alighting at place not ordinarily used in discharging passengers and where many vehicles are accustomed to pass of danger of passing traffic nor to protect him from such danger after he has left taxi.

6. Carriers. — Where taxi stopped on right side of highway which was skirted by railroad track to permit passenger to alight, taxi driver was not liable to passenger for injuries sustained when passenger opened door of taxi into path of train approaching from same direction as taxi was headed, where presence of railroad track, its proximity to taxi, probability of train approaching, and potential danger arising from opening of taxi door were as obvious to passenger as to driver (Ky. Stats., sec. 2739g-35).

7. Railroads. — Ordinarily, railroad need not maintain lookout beyond its right of way, or anticipate that motorist on highway alongside track in proximity thereto will, without taking any precaution in his own behalf, drive suddenly on track, and railroad must exercise reasonable care to prevent injuring motorist at crossing only after discovering that motorist is about to turn so as to come on crossing.

8. Railroads. — Employees of railroad were not required to keep lookout or exercise ordinary care to avoid injuring passenger in taxi traveling on highway paralleling railroad track and were not required to anticipate stopping of taxi and attempted discharge of passenger until they observed taxi was not moving and were cognizant of such facts as would apprise reasonably prudent person that taxi was at standstill and would not likely move on and that passenger therein might depart therefrom.

9. Evidence. — In action by passenger in taxi against railroad for injuries sustained when taxi stopped to discharge passenger near footpath which passenger was entitled to use as licensee and which was located on opposite side of railroad tracks which skirted highway and passenger opened taxi door in path of train approaching from same direction as taxi was headed, opinions fixing time which elapsed between stopping of taxi and collision were insufficient to sustain verdict in favor of passenger.

10. Railroads. — Passenger who was alighting from taxi which stopped near footpath which passenger was entitled to use as licensee and which was located on opposite side of tracks which skirted highway was required to exercise ordinary care for his own safety, although passenger was not required to anticipate real or potential danger and was entitled to rely on those in charge of train giving warning by appropriate signal of train's approach if they had time in which to do so before collision after they knew, or by exercise of ordinary care could discover, that taxi had stopped.

11. Negligence. — Necessary elements of "last clear chance" doctrine are that plaintiff, because of negligence, is in position of danger, from which he cannot escape by ordinary care, that defendant has knowledge of plaintiff's position and knows, or should know, that plaintiff cannot escape, and that defendant has last clear chance to avoid accident but fails to do so, whereby plaintiff is injured as proximate result of such failure.

12. Railroads. — Passenger alighting from taxi which stopped near footpath which passenger was entitled to use as licensee and which was located on opposite side of tracks which skirted highway could not recover from railroad for injuries sustained when he opened taxi door into path of train approaching from same direction as taxi was headed, where such brief space of time elapsed between full stop of taxi and collision that those in charge of train could not avert collision.

Appeal from Harlan Circuit Court.

CLEON K. CALVERT, ASHBY M. WARREN, LOW & BRYANT, B.M. LEE and J.C. BAKER for appellant Louisville & Nashville R. Co.

E.H. JOHNSON and MARION THOMAS for appellant Cecil Hensley.

R.L. POPE, R.S. ROSE, J.O. BAKER, EDWARD C. O'REAR and ALLEN PREWITT for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

This appeal requires a review of the trial of an action to recover damages for personal injury alleged to have resulted from the concurrent negligence of Cecil Hensley, a taxi driver, and the Louisville & Nashville Railroad Company, in which damages in the sum of $10,000 were fixed by the jury's verdict against both defendants with its direction that Hensley "shall pay $3,000 of this sum."

A variety of questions are presented and debated in the briefs and nearly one hundred cases cited to sustain the parties' respective insistence. In the outset, we dsire to announce that we will not review in this opinion all of the cases cited. To do so would consume too much time and space.

The decisive question to be determined is the right of both Hensley and the railroad company to a directed verdict.

Much evidence was introduced by the parties to prove and disprove that Braden was a licensee as to the railroad company at the time he sustained the injury for which he sues. In disposing of the paramount question, we shall consider that Braden had the right to use the footpath described by the evidence, as a licensee of the railroad company, and was a passenger of Hensley.

To properly consider and dispose of the right of either of them to a peremptory instruction, requires a reproduction of the salient evidence relating to the time, place, and surroundings of the parties immediately preceding and at the time of the accident.

On March 23, 1932, Braden was at the mine of the Creech Coal Company at Lowe, in company with a Mrs. Bussell, his sister-in-law. Around 5 o'clock, on the afternoon of that date they hailed Hensley, a taxi driver, and engaged him to transport them to Banner Fork No. 1, an abandoned coal mine camp in the immediate vicinity of which about forty-two families, composed of from four to eleven members, resided. On entering the taxi, they occupied the rear seat, Braden on the right, and Mrs. Bussell on the left; they began and continued their journey to Banner Fork No. 1. In making the trip, they reached a public crossing at Lisle, which was blocked by the train of coal cars later involved in the accident in which Braden sustained his injury. After waiting a few moments, the crossing was unblocked when the taxi crossed it and proceeded on its way. The highway and the railroad track from Lisle to Banner Fork No. 1 paralleled each other. While the taxi was traveling from Lisle to Banner Fork No. 1, Braden occupied the side of the seat next to the railroad track. He claims that while so traveling he did not know the train and taxi were traveling in the same direction. At Banner Fork No. 1, the highway skirts the railroad track for a distance of about 184 feet. The metal on the highway extends to the end of the ties, this 184 feet. A public crossing is 416 feet from the place of the accident over which the train traveled before it reached the point at which Braden was injured. On reaching Banner Fork No. 1, 416 feet from the public crossing, Hensley stopped his taxi on the right side of the highway within about 6 inches of the ends of the ties. As to the length of time the taxi stood still on the highway before Braden was injured, the testimony of Braden and Mrs. Bussell is clear and conclusive. In this fact lies the solution of the case. To be accurate, we quote their testimony establishing it decisively.

Braden's language is:

"He (Hensley) drove up to No. 1 and my sister-in-law was opening the pocket-book to pay the fare. I saw she started getting the change out, I opened the door and kinda scooted out, this way, with my right foot, and as I scooted out, the door was about half open. I looked and saw the rails, when I saw the rails I riz to my feet so I could look over the door to see if there was anything on the rail, and the train was in eight feet of me and I tried to make my escape back in, but it was too late to shut the door."

Also, he was asked and answered as follows:

"Q. About how wide do you think you got the door open and saw the train coming? A. About half open, maybe a little more.

"Q. How many feet did you get on the running board? A. I got one foot out on the running board.

"Q. What did you do when you looked out and saw the train bearing down on you? A. I tried to make my escape back in the car. * * *

"Q. How long from the time you saw that train bearing down on you until it struck the car door? A. About like that (snapping fingers rapidly). * * *

"Q. What did it do to you? A. It run over my left foot and had it busted up until it had to be taken off here."

Mrs. Bussell was asked and answered thuswise:

"Q. What did you do, if anything, when the car stopped? A. I started to pay the fare.

"Q. Your taxi fare? A. Yes Sir.

"Q. Did you see the train hit your brother-in-law? A. Just as I looked around the train hit him.

"Q. Where was he at that time? A. He was just stepping out of the...