Hopper v. Barren Fork Coal Co.

• Decision Date: 24 March 1936
• Citation: 263 Ky. 446,92 S.W.2d 776
• Parties: HOPPER v. BARREN FORK COAL CO. R. J. SMITH CO. v. SAME.
• Court: Kentucky Court of Appeals

92 S.W.2d 776

263 Ky. 446

HOPPER v. BARREN FORK COAL CO.

R. J. SMITH CO. v. SAME.

Court of Appeals of Kentucky

March 24, 1936

Appeal from Circuit Court, McCreary County.

Separate actions by Orville Hopper and by the R. J. Smith Company against the Barren Fork Coal Company. Judgment for defendant and plaintiffs appeal.

Reversed with directions.

W. N Flippin, of Somerset, and C. N. Hobson, of Frankfort, for appellant.

Stephens & Steely, of Williamsburg, and H. M. Cline, of Whitley City, for appellee.

In second action:

B. J. Bethurum, of Somerset, for appellant.

E. L. Stephens and Stephens & Steely, all of Williamsburg, and H. M. Cline, of Whitley City, for appellee.

RICHARDSON Justice.

The first-entitled action is to recover damages for personal injuries sustained by the alleged negligence of the Barren Fork Coal Company. The second, to recover damages on the same ground, for the destruction of a truck loaded with merchandise. A perplexing question of practice is presented in both cases.

The actions were tried as one in the circuit court. The trial was completed the last Thursday of the regular term of court. At the conclusion of the argument to the jury of counsel of Orville Hopper and R. J. Smith Company, who resided in an adjoining county, they arranged with a local attorney, not engaged in either case, to report to them the jury's verdict as soon as it was returned to the court. He agreed, but omitted to do so. On the next day, Friday, counsel received information that the jury's verdict was adverse to their clients; also, that the judge of the court had returned to his home in an adjoining county. Counsel for R. J. Smith Company got in communication by telephone with the judge of the court and imparted to him the information that his client and Hopper desired to file motion and grounds for a new trial. The judge directed him to file the same with the clerk of the court and to have the clerk to enter an order on the order book which he had signed, leaving space above his signature for the clerk to enter such orders as directed by the judge to be entered. On Saturday, within three days of the trial, counsel for Hopper delivered to the clerk of the court the motion and grounds for a new trial, of Hopper and R. J. Smith Company, with the information that the judge of the court had directed the clerk to be informed of his consent for her to enter the order filing and overruling the motion and grounds, as above indicated, which later was accordingly done.

The Barren Fork Coal Company attacked this order on the ground that it was entered after the court had adjourned, and insists it was therefore void. On the evidence of the parties directed to this issue, the circuit court overruled its application to nullify the order. Whilst the filing of the motion and grounds for a new trial and the entering the order respecting the same may be conceded informal, the order was not void.

The Barren Fork Coal Company is here entering a motion to strike from the record the motion and grounds for a new trial, the bill of exceptions, and the evidence. The order filing same being valid, the motion to strike is overruled.

Coming to the merits of the case, the injuries sustained by Hopper for which he sues, and the damage to the truck and the merchandise contained therein, occurred at the same time and place. For this reason our statements and references to the pleadings, the issues formed, the evidence, the instructions of the court, and those offered by the parties will be considered as if Hopper's were the only case under review.

R. J. Smith Company, prior to and at the time Hopper sustained his injuries, was engaged in the wholesale and retail business at Somerset, Ky. It delivered its merchandise to its customers with trucks. Orville Hopper, on the 30th day of October, 1933, was in charge of one of its trucks loaded with merchandise, in McCreary county, Ky. on State Highway No. 27. While operating it over a spur track of the Barren Fork Coal Company, one of its train of cars--consisting of an engine, tender, car loaded with scrap iron, and an empty flat car--collided with the truck, seriously injuring Hopper, practically demolishing the truck, and destroying the merchandise in it.

To recover damages for the injuries sustained by him, he filed his action in the McCreary circuit court; and to recover damages to the truck and merchandise, R. J. Smith Company filed its suit to recover of the Barren Fork Coal Company.

To present properly and correctly the questions to be determined, it is essential and required that Hopper's cause of action as it is stated in the petition as amended, and R. J. Smith Company's cause of action as it is stated in its petition, the defenses of the Barren Fork Coal Company as contained in its answers, be reviewed herein.

In his original petition Hopper confined his right to recover to specific negligence as alleged therein. Its language is that the company "carelessly and negligently," "while backing its said train of cars over its said spur track," "ran its said train of cars over and upon a motortruck being then and there operated by the plaintiff upon said highway and causing said engine and train of cars to collide with said truck, and as a direct result of the gross negligence of the defendant, its agents, servants and employees in charge of and operating said engine and train of cars, the plaintiff was thrown against and came in contact with said engine and train of cars with great force, receiving thereby a fracture of both legs, etc."

In his amended petition it is set out that "defendant's said track of railroad crosses State Highway No. 27 in a dense forest, rendering said crossing an unusually dangerous one; that a dense growth of trees, bushes, undergrowth, brush, weeds, and briars were standing and growing in close proximity to said railroad track and in close proximity to said state highway for a considerable distance on both sides of said railroad and on both sides of said state highway, all of which prevented the operatives of said train from seeing the approach of plaintiff to said crossing, and prevented plaintiff from seeing or hearing the train before being struck. Plaintiff says that the defendant was the owner of the land upon which said timber and other obstructions grew; knew of these facts, and knew that said crossing was an unusually dangerous one, and negligently permitted its right of way on both sides of said track in the vicinity of said crossing *** to be covered and filled with standing and growing timber, trees, bushes, undergrowth, brush, weeds and briars; that at the time and place complained of *** its servants and employees in charge of said train negligently failed to give any proper or reasonable warning to plaintiff of the approach of said train, or to employ any reasonable means to that end; that defendant and those in charge of said train omitted to ring the bell or sound the whistle for a distance of fifty rods from said crossing until it reached same, and negligently failed to have any person upon the end of said train nearest said crossing, *** and by reason of the gross carelessness and negligence of plaintiff, its agents and servants and employees in charge of said train, it collided with the truck injuring him as set out in the original petition."

R. J. Smith Company's petition as amended sets out the same facts as the basis of its cause of action. In its answer the Barren Fork Coal Company controverted the petition and pleaded contributory negligence.

The evidence of Hopper and R. J. Smith Company, as well as that of the Barren Fork Coal Company, establishes that after those in charge of the train of cars at the time and place Hopper was injured and the truck and merchandise were damaged, sounded the whistle for the crossing, but they failed to, and did not at a distance of at least fifty rods from the place where the railroad crosses the highway, ring the bell or sound the whistle continuously or alternately or at all, until the engine had reached the highway. In lieu of so signaling for the crossing, the fireman was on top of the tender, "hollering," attempting in this manner to warn Hopper of the approach of the train of cars to the crossing. At the time he was so engaged, the engineer in charge of the actual operation of the train, when at least one hundred feet from the crossing, heard the fireman "hollering," and thus received information of the danger from the presence of the train to some one on the highway, whereon Hopper was operating the truck; and with this warning of the presence of danger to traffic on the highway, the engineer failed to, and did not, ring the bell or sound the whistle, or slow down or stop the train of cars, but proceeded at the rate of three or four miles per hour, with the engine under such control that he could have stopped the train within three to five feet, as he says, on the assumption that whoever might be on the highway and in danger would get out of the way of the approaching train; and thus, himself, avoid injury.

It is admitted by the Barren Fork Coal Company and those in charge of the train that at that time, and at no time previous thereto, was there a railroad signal board, well supported by posts, or otherwise, of any height, or at all, with any letters thereon, indicating the presence of a railroad crossing. There were, however, at that time on the highway on each side of the railroad crossing, highway signs some several hundred feet from the railroad crossing. See section 773, Kentucky Statutes. At the time Hopper sustained his injury, the train was backing at the rate of three or four miles per hour in the direction of, onto and over the highway. Hopper's truck was traveling at...