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

• Decision Date: 25 May 1937
• Citation: 268 Ky. 458,105 S.W.2d 153
• Parties: ILLINOIS CENT. R. CO. v. APPLEGATE'S ADM'X et al.
• Court: Kentucky Court of Appeals

105 S.W.2d 153

268 Ky. 458

ILLINOIS CENT. R. CO. v. APPLEGATE'S ADM'X et al.

Court of Appeals of Kentucky

May 25, 1937

As Modified on Denial of Rehearing June 19, 1936.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Harry L. Applegate's administratrix and others against the Illinois Central Railroad Company and another. From a judgment against it, the Illinois Central Railroad Company appeals.

Affirmed.

Trabue Doolan, Helm & Helm, of Louisville, Charles N. Burch, of Memphis, Tenn., E. C. Craig, of Chicago, Ill., and Edmund F Trabue and Blakely Helm, both of Louisville, for appellant.

Dodd & Dodd, of Louisville, for administratrix.

Farnsley & Farnsley and J. W. Hottell, all of Louisville, for Ohio Valley Loan Co.

Crawford, Middleton, Milner & Seelbach, of Louisville, for Kosmos Portland Cement Co.

RICHARDSON Justice.

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 kenw 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 country crossings, generally, is negligence." Louisville & N. R. Co. v. Locker's Adm'rs, supra; Louisville & N. R. Co. v. Cummins' Adm'r, 111 Ky. 333, 63 S.W. 594, 23 Ky.Law Rep. 681; Parkerson v. Louisville & N. R. Co., 80 S.W. 468, 25 Ky.Law Rep. 2260.

The railroad company, on the authority of those cases, contends that the evidence relating to the speed of the train was incompetent and its admission was a prejudicial error, demanding a reversal.

It is true that in the Locker, the Molloy, the Cummins, the Parkerson, and other cases we have held that "it was error to permit opposing counsel in the examination of witnesses to inquire of the speed of the train and the distance in which it could have been stopped, and such evidence clearly is incompetent upon the trial of a case involving an accident at a rural crossing which is not unusually dangerous." Louisville & N. R. Co. v. Locker's Adm'rs, supra.

The rate of speed at which the train was traveling was not evidence of negligence, and was incompetent for the purpose of establishing a basis of a recovery, yet it was competent, as a circumstance incident to the accident in which Applegate lost his life, to be considered by the jury in connection with the other evidence, as shedding light on the actions of the parties immediately preceding, and at the time of, the accident. Louisville & N. R. Co. v. Bodine, 109 Ky. 509, 59 S.W. 740, 23 Ky.Law Rep. 147, 56 L.R.A. 506.

The administratrix only inquired of the witnesses as to the rate of speed at which the train was traveling when approaching the crossing. She did not, as was done in the cases cited and relied on by the railroad company, develop evidence as to the speed of the train and also the distance in which it could have been stopped.

The court in its instructions did not submit to the jury, as an element of negligence, the rate of speed at which the train was traveling at the time of the accident.

In the cases cited by the railroad company, the instructions, especially in the Molloy Case, advised the jury to regard the speed of the train as negligence at the time of the accident, and authorized it to base its verdict thereon.

Assuming that the evidence fails to establish the existence of a custom on the part of the railroad company to give signals at this crossing, but establishes that Applegate was guilty of contributory negligence, the railroad company urges that it was entitled to a directed verdict.

The engineer in charge of its train in his testimony admitted that he always gave signals for this crossing. The testimony of many witnesses establishes that varying from 50 per cent. to 90 per cent of the railroad company's trains habitually gave signals for this crossing. The evidence establishing the custom to give signals for this crossing is substantially the same as that which we considered sufficient to authorize the submission of the issue to the jury and sustain its verdict in Louisville & N. R. Co. v. Engleman's Adm'r, 135 Ky. 515, 122 S.W. 833, 21 Ann.Cas. 565, and Louisville & N. R. Co. v. Engleman's Adm'x, 146 Ky. 19, 141 S.W. 374.

The Engleman Case is conclusive of the question of the sufficiency of the evidence to establish the railroad company's custom to give signals at this crossing. Also of the administratrix' right to have the case submitted to the jury as to this issue. The proven facts herein distinguish this case from Stull's Adm'x v. Kentucky T. & T. Co., supra.

The basis of the insistence that Applegate was, as a matter of law, guilty of contributory negligence, is, that it was the duty of Applegate when approaching the crossing to use such care for his own safety as is usually expected of an ordinarily prudent person to learn of the approach of the train of cars and to keep out of its way; and that the evidence establishes that he failed to exercise ordinary care within the purview of this rule. It substantially argues that...