Illinois Cent. R. Co. v. Applegate's Adm'X

• Decision Date: 25 May 1937
• Parties: Illinois Cent. R. Co. v. Applegate's Adm'x et al.
• Court: United States State Supreme Court — District of Kentucky

268 Ky. 458

Illinois Cent. R. Co. v. Applegate's Adm'x et al.

Court of Appeals of Kentucky. Common Pleas Branch, Fourth Division.

Decided June 19, 1936.

As Modified on Denial of Rehearing May 25, 1937.

1. Railroads. — Generally, rate of speed of railroad train at country crossings is not negligence.

2. Railroads. — In an action for accident at rural railroad crossing, which is not unusually dangerous, evidence as to speed of train and distance in which it can be stopped is incompetent.

3. Railroads. — In action for death of motorist struck by train at private crossing, evidence of rate of speed of train, though inadmissible to show negligence, was admissible to shed light on actions of the parties just before and at time of accident.

4. Railroads. — In action for death of motorist struck by train at private crossing, testimony of engineer that he always gave signals for that crossing and testimony of many witnesses that from 50 per cent. to 90 per cent. of trains habitually gave signals authorized submission of issue to jury and verdict that there was a custom to give signals at crossing.

5. Railroads. — One who goes upon a railroad track in front of rapidly approaching train, which is known, or should be known, to be approaching, is negligent, and cannot recover from railroad for injury or death.

6. Evidence. — In action for death of motorist struck by train at

private crossing, where many witnesses testified train gave no signals, and engineer, fireman, and one or two witnesses testified train did give signals, jury could disregard testimony of engineer and fireman and find that no signals were given.

7. Railroads. — In action for death of motorist struck by train at private crossing, where train was traveling 45 miles an hour and failed to signal when motorist reached point from which motorist could see and be seen, whether motorist failed to exercise ordinary care to learn of approaching train and avoid it held for jury.

8. Railroads. — In action for death of motorist struck by train at private crossing, fact train was traveling 45 miles an hour, though inadmissible to show negligence, was admissible to enable jury to determine whether motorist, when he was at a point where he could see train, exercised ordinary care.

9. Railroads. — In action for death of motorist struck by train at private crossing, where witnesses watching train heard no signals, motorist cannot be presumed to have heard signals nor held to such accuracy of judgment as if he had heard them.

10. Evidence. — It is general knowledge that in traveling highways the average person thinks of business affairs, domestic troubles, and numerous other matters closely involving himself.

11. Railroads. — Motorist on road crossing railroad tracks at rural intersection is entitled to rely on train crew giving customary signals of train's approach, since a motorist is usually engaged in thought of matters unconnected with driving.

12. Railroads. — Motorist crossing private crossing, where railroad trains customarily gave signals on approach, had the right to rely upon statutory duty of railroad to give signals.

13. Evidence. — Presumption is that no one will voluntarily imperil his life, and that he took ordinary precaution for his safety, if there is no contrary evidence.

14. Evidence. — In action for death of motorist, struck by train at private crossing, motorist's estate, in attempting to relieve motorist of contributory negligence, could invoke the principle that one is presumed to not voluntarily imperil his own life.

15. Railroads. — Motorist approaching a private railroad crossing was under no duty to stop, look, and listen.

16. Appeal and Error. — In action for death of motorist struck by train, wherein sole negligence relied upon was failure of engineer to give warning signal at the crossing, and administratrix recovered only against railroad, instruction authorizing jury to find for administratrix against railroad or engineer or both of them held not to require reversal as permitting an illogical verdict where, if reversal were had, administratrix would be without remedy in that judgment in favor of engineer had become final, and only judgment dismissing petition could be entered.

17. Master and Servant. — Master's liability for tort committed by servant rests upon doctrine of respondeat superior, and, unless negligence on the part of the servant is shown, a recovery against the master cannot be had.

18. Appeal and Error; Death. — In action for death of motorist struck by train, evidence of the number of members of deceased's family was irrelevant, but admission was not, of itself, ground for reversal.

Appeal from Jefferson Circuit Court.

TRABUE, DOOLAN, HELM & HELM, CHARLES N. BURCH, EDMUND F. TRABUE and BLAKELY HELM for appellant.

DODD & DODD for administratrix.

FARNSLEY & FARNSLEY and J.M. HOTTELL for Ohio Valley Loan Co.

CRAWFORD, MIDDLETON, MILNER & SEELBACH for Kosmos Portland Cement Co.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

The Illinois Central Railroad Company appeals from a judgment entered on a verdict of a jury against it in favor of Harry L. Applegate's administratrix.

In an accident at a private crossing in Jefferson county, just north of West Point, an automobile in which Harry L. Applegate was traveling, on October 15, 1934, was struck by a train of the Illinois Central Railroad Company, resulting in his death.

His administratrix, to recover for the loss of his power to earn money, sets forth in her petition as amended numerous specific acts of negligence on the part of the railroad company and its agents and employees in charge of its train of cars. On a trial before a jury, the evidence in her favor and that of the railroad company was directed to the location and situation of the crossing; the conditions surrounding it; the custom of the railroad company to give signals for this crossing; and its giving and failing to give signals on the occasion of the death of Applegate.

The track of the Illinois Central Railway Company paralleled highway 31-W about 50 feet apart. Applegate lived on a farm just south of Kosmosdale, near the railroad track on the east side of the highway. He owned the farm on which his home was located and other land about three-quarters of a mile on the farther side of the railroad, west of the highway. To go from his residence to this farm, he traveled the highway, then along a private road to a grade crossing. The private road leaves the highway at about right angles and runs about 54 feet from the highway to the railroad track, then about 243 feet to a high bank above the Ohio river. A field lays to the right of this road along the railroad back toward the overhead bridge. One house is located near the river and is reached by going along this field near the river; two others are located to the left of this private road and are reached by using this crossing. Applegate had alfalfa in a field on his farthest farm reached by this private crossing. He had a number of men employed to bale hay. They had been working that morning in a field north of the overhead bridge. The hay baler had been taken over this crossing for use in the afternoon. It was expected of Applegate to bring with him to the field a hayfork, but he forgot it. He went to get it, leaving the men in the field waiting for him. He had been gone approximately ten or fifteen minutes. The men in the field knew that the train was coming, and were in a position to see Applegate approaching on the highway. After leaving the highway, while going to the private crossing, he "almost stopped his car," "gave his head a turn," and at the time he did so, he was at a point he could not see up the track, and to use the language of some of the witnesses, "he then put on the gas and `eezed' the car onto the crossing"; and, when he had gotten about halfway over it, the automobile in which he was traveling was struck by the train. He and the automobile were thrown to the right or west side of the track. The parties agree that the crossing was a private one.

The questions submitted to the jury were: (a) Was it customary for the train to signal for this crossing? (b) whether the train, before it collided with the automobile, failed to give signals; and (c) whether Applegate was contributorily negligent and helped to cause the accident.

Respecting these questions, the railroad company in its brief makes this statement:

"On the first of these issues there was a sharp clash, but the evidence may be summed up in the statement used by several witnesses, that some trains did customarily signal and some did not. On the second question most of appellee's witnesses stated that no signals were given, although all witnesses to the accident knew the train was approaching the crossing. * * * On the third question there is no conflict in the testimony."

It limits its argument for reversal to:

"(1) Prejudicial errors in evidence.

"(2) Peremptory instruction should have been given.

"(3) Verdict is flagrantly against evidence.

"(4) Instruction 1 as to signals erroneous.

"(5) Instruction 1 as to finding against either defendant erroneous."

Evidence as to the rate of speed the train was traveling immediately before and at the time it struck Applegate's automobile was introduced by both the administratrix and the railroad company. It was, of course, first introduced by the administratrix. The railroad company objected to this line of evidence on the theory that "a railroad may lawfully operate its trains at such speed as is consistent with the safety of its passengers over private crossings in the country." Stull's Adm'x v. Kentucky T. & T. Co., 172 Ky. 650, 189 S.W. 721, 723; Louisville & N.R. Co. v. Locker's Adm'rs, 182 Ky. 578, 206 S.W. 780, 784; Louisville & N.R. Co. v. Molloy's Adm'x, 122 Ky. 219, 91 S.W. 685, 28 Ky. Law Rep. 1113.

It correctly argues that "this court has repeatedly held that no rate of speed at...