Hensley v. Braden
| Decision Date | 19 November 1935 |
| Parties | HENSLEY et al. v. BRADEN. |
| Court | Kentucky Court of Appeals |
Rehearing Denied March 24, 1936.
Appeal from Circuit Court, Harlan County.
Action by Claude H. Braden against Cecil Hensley and another. From the judgment, the defendants appeal.
Reversed with directions.
Cleon K. Calvert, of Pineville, Ashby M. Warren, of Louisville, Low & Bryant, of Pineville, and B. M. Lee and J. C. Baker, both of Harlan, for appellant Louisville & Nashville R. Co.
E. H Johnson, of Harlan, and Marion Thomas, of Louisville, for appellant Cecil Hensley.
R. L Pope, of Knoxville, Tenn., R. S. Rose, of Williamsburg, J. O Baker, of Harlan, and Edward C. O'Rear and Allen Prewitt, both of Frankfort, for appellee.
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 desire 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:
Also, he was asked and answered as follows:
Mrs. Bussell was asked and answered thuswise:
To obtain a more perfect conception of what transpired at the time Mrs. Bussell was engaged as described in her testimony, we revert to other questions to, and answers of, Braden, which read:
Braden further testified that at the time he was so engaged the paved highway at this point was about 20 or 22 feet wide and no other vehicles were present or passing thereon.
On the opposite side of the railroad track from where the taxi stopped was a footpath leading in the direction of Braden's home. N. R. Denham, a civil and mining engineer, a witness of Braden, made measurements of the ground and prepared a map showing the public crossing, the railroad track, the public highway, and this footpath. He located the taxi at the time Braden was injured 10 feet from the point one would travel if crossing the railroad track going to, and using, this footpath. A sense of fairness to Braden induces us to say that he and others testified that the taxi stopped "directly opposite the path." He asserts the right of a licensee to travel it.
The parties agree that Braden, Mrs. Bussell, and Hensley were perfectly familiar with the highway and railroad track and knew that the metal on the highway extended within about 6 inches of the ends of the railroad ties for a distance of 184 feet and that taxies and other vehicles generally used this distance along the side of the track when stopping discharging, and receiving passengers. It was, however, not attempted to be proven that the railroad company, after it passed over the crossing, theretofore had engaged in, or adopted the custom of, giving signals, to warn these about to use the footpath, of the approach of its trains. No depot or flag or other station was kept or maintained by the railroad company at Banner Fork No. 1. The railroad track was used only by coal cars. There is a contrariety of evidence respecting the blowing the whistle and the ringing the bell of the train for, and at, the public crossing. Braden's witnesses testified, and it was admitted by the railroad company, that neither the whistle nor the bell sounded on this occasion after the train passed over the public crossing, 416 feet from the point of the accident. The fireman of the train was in a position he could not see the taxi. The engineer testified that he first saw it when the train was within 100 feet of it, but that at the time Braden...
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...to survey the surroundings and act for his own protection.' Kieger v. St. Paul City Ry. Co., 216 Minn. 38, 11 N.W.2d 757; Hensley v. Braden 262 Ky. 672, 91 S.W.2d 34; Conroy v. Boston Elevated Co., 188 Mass. 411, 74 N.E. 672; Smuzynski v. East St. Louis Ry. Co., 230 Mo.App. 1095, 93 S.W.2d ......
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