Illinois Cent. R. Co. v. Outland's Adm'x

• Citation: 160 Ky. 714,170 S.W. 48
• Parties: ILLINOIS CENT. R. CO. v. OUTLAND'S ADM'X.
• Decision Date: 06 November 1914
• Court: Court of Appeals of Kentucky

170 S.W. 48

160 Ky. 714

ILLINOIS CENT. R. CO. v. OUTLAND'S ADM'X.

Court of Appeals of Kentucky.

November 6, 1914

Appeal from Circuit Court, Graves County.

Action by O. N. Outland's administratrix against the Illinois Central Railroad Company and another. From a judgment for plaintiff, defendant Railroad Company appeals. Affirmed.

Robbins & Robbins, of Mayfield, Blewett Lee, of Chicago, Ill., and C L. Sivley, of Memphis, Tenn., and Trabue, Doolan & Cox, of Louisville, for appellant.

Stanfield & Stanfield, of Mayfield, for appellee.

SETTLE J.

This is an appeal from a judgment of the Graves circuit court entered upon a verdict awarding appellee, as administratrix of the estate of her deceased husband, O. N. Outland, $9,000 damages for his death, caused, as alleged, by the negligence of appellant's flagman at the crossing of Broadway street over its railroad tracks in Mayfield, and the negligence of other of its servants in charge of a passenger train which ran over and killed the decedent at the crossing in question. The appellant company and its flagman, Martin Irvin, were joined as defendants; it being alleged in the petition that the decedent's death was caused by their joint and concurrent negligence.

The appellant railroad company and its codefendant, Martin Irvin filed separate answers to the petition, each of which admitted the killing of the decedent by the train, but denied that his death was caused by the negligence of either of them. Each answer pleaded contributory negligence upon the part of the decedent, which plea was controverted by the reply filed to each answer.

On the trial the court instructed the jury that they could find a verdict in favor of the plaintiff against both defendants, or could find a separate verdict against them, fixing one amount to be paid by one defendant and another amount by the other defendant, or that they might find for one defendant and against the other or in favor of both defendants. The jury returned a verdict against the appellant railroad company, but made no finding either for or against the other defendant, Martin Irvin. The verdict, however, was interpreted by the court as being a finding in favor of Irvin and by reason thereof a judgment was entered dismissing the petition as to Irvin and awarding him his costs.

The evidence heard upon the trial is very voluminous. There were 40 witnesses introduced by the appellee and 30 in behalf of the appellant. Much of the evidence was conflicting, but our analysis of it shows the following state of facts: The decedent was killed where appellant's railroad tracks cross one of the principal streets of the city, known as Broadway, in a populous section of the city of Mayfield. The decedent was approaching the crossing upon a coal wagon drawn by a pair of horses he was driving. The train which struck and killed him was a fast mail train going north, and consisted of an engine, tender, and six cars. It was a solid steel train, and was from 30 to 45 minutes behind its schedule time of arriving at the Mayfield station. The great weight of the evidence tended to show that, at the time of striking the decedent, the train was running at a speed of from 25 to 30 miles per hour. South of the crossing there is a cut and curve almost forming a semicircle in the railroad track, between which and the crossing stands an embankment containing, next to the crossing, a building and other obstructions which intercepted the view from the crossing, and prevented one approaching the crossing on a wagon or other vehicle from seeing a train on the curve or beyond it. In fact, it appears from the weight of the evidence that one upon or near the crossing, whether upon a wagon or afoot, is unable to see a train coming north until it emerges from the cut. On the occasion in question, as the decedent drove toward and reached the crossing, the horses attached to his wagon were going in a walk or slow trot, and before driving upon the crossing he seemed to have stopped or checked them, evidently for the purpose of ascertaining whether there was any danger to be apprehended from the coming of a train. As the horses attached to the wagon got upon the railroad track the engine of the belated train made its appearance at Water street, 900 feet from the crossing, where it was for the first time seen, or could be seen, by the decedent, and it reached the crossing and struck the wagon while it was upon the track. In this collision the engine came in contact with the body of the decedent, causing his death. It appears from the evidence that the decedent was a very careful and prudent driver, and that there was much noise being made at the time of the accident by the movements of a nearby freight train and by the unloading of coal a short distance away. While there were several other teams in charge of drivers near the crossing at the time the decedent was killed, none of them, according to their testimony, seemed to be aware of the coming of the train until the decedent's team got upon the track, and it was too late for him to make them pull the wagon across the track or back the team therefrom, out of the way of the train. Many witnesses introduced for appellee testified that no signal was given of the train's approach until it was too late for the decedent to avoid the collision; while numerous witnesses for appellant, among them the train crew, testified that the whistle was blown about the time the train entered the corporate limits of Mayfield, and that therefrom until the crossing was reached the customary signal of its coming was given by the ringing of the engine bell.

Martin Irvin, the watchman at the crossing, who was jointly sued with the appellant, testified that he was standing at a point 25 or 30 feet north of his flaghouse at the time the decedent drove up, and that he had a green flag in his hand which he was holding out in a horizontal position; that just before the decedent's horses got to the railroad track he waived the flag to him to stop, and called to him to "Look out, son!" But that, notwithstanding the warning, he whipped the horses and drove ahead until they got beyond the track, and the wagon was on the track or getting on it when struck by the engine of the train. Irvin was in some measure corroborated in these statements by Hester and Somerville. But a greater number of witnesses introduced by appellee, in better positions to see and hear, testified that Irvin made no attempt to warn the decedent of the coming of the train or to stop him until his horses had gotten upon or across the track, and that the waving of a flag in the hands of a watchman at a crossing was usually understood by the public using the crossing as a signal that persons or teams intending to cross the railroad track could do so with safety. These witnesses did not see the waving of a flag in Irvin's hands until after the decedent's team got upon or across the track.

There was a diversity of opinion, even among the appellant's witnesses, as to the speed of the train in approaching the crossing. The engineer said it was going at about 15 miles per hour, and the conductor said its speed was 15 to 18 miles per hour, while several other witnesses testifying for appellant said the train was running at a speed of from 20 to 25 miles per hour; and there was no contrariety of evidence as to the fact that it was from 30 to 40 minutes behind its scheduled time. There was also a contrariety of evidence as to the distance the train ran after striking the decedent before it was stopped. The emergency brakes were put on, according to the engineer's statement, 60 feet south of the crossing, and the engine was stopped in front of appellant's ticket office at the passenger depot, 450 feet north of the crossing. According to the measurement of T. J. Murphy, another witness, Broadway street at the crossing is 66 feet in width; so after the emergency brakes were applied the. engine ran 576 feet before it was stopped. Other witnesses testified that the engine stopped in front of appellant's water tank, which was shown by measurement to be 150 feet north of the ticket office, and if it did not, in fact, stop until it got to the water tank, it ran 726 feet after the emergency brakes were applied before it was stopped. Further evidence of the speed of the train at the time the decedent was killed was furnished by the fact that the force of the collision was such that his body was knocked upward and thrown or carried by the engine a distance of 90 feet from the point of the collision. It is fairly apparent from the evidence as a whole that the speed of the train was so great that, but for the sudden application of the emergency brakes and the collision, it would have gone beyond the station before stopping.

We are convinced from our reading of the record that there was abundant evidence conducing to prove negligence upon the part of appellant's servants in charge of the train; not only in running it at the rate of speed employed at the time of the decedent's death, but also in failing to give proper signals of its approach. The facts here furnished by the evidence are very similar to those appearing in the case of C. & O. Ry. Co. v. Dixon's Adm'x, 104 Ky. 608, 47 S.W. 615, 20 Ky. Law Rep. 792, in respect to which the court said:

"There is evidence tending to show, and from which the jury could reasonably find, that those in charge of the train were guilty of negligence in two respects: First, in failing to give proper signal of the approach of the crossing; second, considering that the crossing was within the limits of a city, the fact of the number of people usually crossing at that place in vehicles and on foot, and the short distance that the track could be seen therefrom,

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