Illinois Cent. R. Co. v. Coley

CourtCourt of Appeals of Kentucky
Writing for the CourtHOBSON, C.J.
Citation121 Ky. 385,89 S.W. 234
Decision Date03 November 1905
PartiesILLINOIS CENT. R. CO. et al. v. COLEY.

89 S.W. 234

121 Ky. 385

ILLINOIS CENT. R. CO. et al.
v.
COLEY.

Court of Appeals of Kentucky.

November 3, 1905


Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by Mary Coley against the Illinois Central Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed. [89 S.W. 235]

Wheeler, Hughes & Berry, J. M. Dickinson, and Trabue, Doolan & Cox, for appellants.

Hendrick & Miller, for appellee.

HOBSON, C.J.

On August 7, 1902, appellee, Mary Coley, then Mary Koerner, was being driven in a spring wagon across the Tennessee street crossing of the Illinois Central Railroad in Paducah. The wagon was struck by a backing engine on the railroad. Two of the occupants of the wagon were thrown out and killed, and Mary Coley sustained painful and serious injuries, to recover for which she filed this action against the railroad company and the engineer in charge of the engine. The railroad company filed its petition for a removal of the case to the circuit court of the United States. The court refused to remove the case. The defendants then filed answer, putting in issue the allegations of the petition and pleading contributory negligence on the part of the plaintiff. The case being heard, the jury returned a verdict in favor of the plaintiff for the sum of $3,500, and the defendants appeal.

The evidence on the trial showed that the Tennessee street crossing was one of the most used crossings in the city of Paducah. The accident happened just after dark. The wagon in which the plaintiff was riding was driven upon the track, when one wagon was just leaving the track and another was just coming up to it. The wagon in which she was riding was thrown against the other wagon. The engine which did the damage was running six or eight miles an hour. It was backing with the tender in front and with a lamp hanging on either side of the tender. It approached the crossing on a curve. There were side tracks on either side of the main track on which cars were standing, so that this engine could not be seen until it got right to the crossing. The proof was conflicting as to whether the engine gave signals of its approach by bell or whistle. The weight of the evidence, however, would indicate that the signals were in fact given, but that, owing to the number of trains passing to and fro and the fact that bells and whistles were blown so often at that point, the signals were not noticed. The amount of travel on the crossing and its obstructed condition by reason of the cars standing on the side track required of the engineer, in backing his engine over it, that he should have it under control, especially when it was dark and there was no adequate light on the tender to give notice of the approach of the locomotive. It was negligence on the part of the company not to have a watchman at such a crossing, or to use some other precaution commensurate with the danger, at least during the hours when people are passing and repassing in numbers; and when the engineer, knowing that there was no watchman there, undertook to back his engine in the dark over such a crossing, he should have exercised care in proportion to the danger attending the situation. We therefore conclude that there was evidence sufficient to warrant the submission of the case to the jury and sustain the verdict of the jury. While the proof as to the extent of the plaintiff's injuries was conflicting, if the jury credited the proof for her that her health was wrecked and permanently impaired, the verdict was not excessive.

Appellant complains that the court gave instruction G, which is as follows: "The court instructs the jury that it was the duty of defendant railroad company, when backing its trains through the city at the place mentioned in the pleadings, where the injuries, if any, occurred, to have some one on the rear part thereof, in a position to see and warn travelers of the approach of trains, or to display lights or give signals in such place as would give reasonable warning of the approach of the train, or use some other reasonably safe means to give the public using the street reasonable warning of the approach of the train; and, if the defendant failed to provide such reasonably safe means to warn the public using said crossing of approaching trains, it was guilty of negligence." Counsel's criticism of this instruction is in these words: "The law only requires that appellant should have used such [89 S.W. 236] means to give notice of the approach of the train as, considering the character of the crossing, was reasonably sufficient to warn travelers of the approach of the train to the crossing, and it should be left to the jury to judge of the reasonable sufficiency of the means actually employed." We are unable to see any substantial difference between the statement of counsel and the instruction of the court; for, although the court does say that it was the duty of the railroad company, in backing its trains, to have some one on the lookout to give signals of its approach, it adds, "or use some other reasonably safe means to give the public using the street warning of the...

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40 practice notes
  • Galveston H. & S. A. Ry. Co. v. Wells, No. 5425.
    • United States
    • Supreme Court of Texas
    • April 21, 1932
    ...Id., 99 Tex. 98, 87 S. W. 814; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. Ed. 485; Illinois Central R. Co. v. Coley, 121 Ky. 385, 89 S. W. 234, 1 L. R. A. (N. S.) 370; Annaker v. Chicago, etc., Ry. Co., 81 Iowa, 267, 47 N. W. 68; Southern Ry. Co. v. Winchester's Ex'x, ......
  • Pirtle's Adm'x v. Hargis Bank & Trust Co.
    • United States
    • Court of Appeals of Kentucky
    • November 10, 1931
    ...and nonfeasance. Haynes' Adm'rs v. C., N. O. & T. P. R. Co., supra; Ward v. Pullman Car Corp., supra; and Illinois C. R. R. Co. v. Coley, 121 Ky. 385, 89 S.W. 234, 28 Ky. Law Rep. 336, 1 L. R. A. (N. S.) 370; Chesapeake & O. Ry. Co. v. Banks' Adm'r, supra; Murray v. Cowherd, supra; Evans Ch......
  • The Boatmen's Bank v. Fritzlen, 14,884
    • United States
    • United States State Supreme Court of Kansas
    • April 6, 1907
    ...288; Knuth v. Butte Electric Ry. Co., 148 F. 73; Yawkey v. Richardson, 9 Mich. 529, 81 Am. Dec. 769; Illinois Cent. R. Co. v. Coley (Ky.), 89 S.W. 234, 28 Ky. Law Rep. 336, 1 L. R. A., n. s., 370; Southern Ry. Co. v. Sittasen (Ind. App.), 74 N.E. 898. The averments in the petition for remov......
  • Pirtle's Adm'X v. Hargis Bank & Trust Co.
    • United States
    • United States State Supreme Court (Kentucky)
    • November 10, 1931
    ...and nonfeasance. Haynes' Adm'rs v. C., N.O. & T.P.R. Co., supra; Ward v. Pullman Car Corp., supra; and Illinois C.R.R. Co. v. Coley, 121 Ky. 385, 89 S.W. 234, 28 Ky. Law Rep. 336, 1 L.R.A. (N.S.) 370; Chesapeake & O. Ry. Co. v. Bank's Adm'r, supra; Murray v. Cowherd, supra; Evans Chemical W......
  • Request a trial to view additional results
40 cases
  • Galveston H. & S. A. Ry. Co. v. Wells, No. 5425.
    • United States
    • Supreme Court of Texas
    • April 21, 1932
    ...Id., 99 Tex. 98, 87 S. W. 814; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. Ed. 485; Illinois Central R. Co. v. Coley, 121 Ky. 385, 89 S. W. 234, 1 L. R. A. (N. S.) 370; Annaker v. Chicago, etc., Ry. Co., 81 Iowa, 267, 47 N. W. 68; Southern Ry. Co. v. Winchester's Ex'x, ......
  • Pirtle's Adm'x v. Hargis Bank & Trust Co.
    • United States
    • Court of Appeals of Kentucky
    • November 10, 1931
    ...and nonfeasance. Haynes' Adm'rs v. C., N. O. & T. P. R. Co., supra; Ward v. Pullman Car Corp., supra; and Illinois C. R. R. Co. v. Coley, 121 Ky. 385, 89 S.W. 234, 28 Ky. Law Rep. 336, 1 L. R. A. (N. S.) 370; Chesapeake & O. Ry. Co. v. Banks' Adm'r, supra; Murray v. Cowherd, supra; Evans Ch......
  • The Boatmen's Bank v. Fritzlen, 14,884
    • United States
    • United States State Supreme Court of Kansas
    • April 6, 1907
    ...288; Knuth v. Butte Electric Ry. Co., 148 F. 73; Yawkey v. Richardson, 9 Mich. 529, 81 Am. Dec. 769; Illinois Cent. R. Co. v. Coley (Ky.), 89 S.W. 234, 28 Ky. Law Rep. 336, 1 L. R. A., n. s., 370; Southern Ry. Co. v. Sittasen (Ind. App.), 74 N.E. 898. The averments in the petition for remov......
  • Pirtle's Adm'X v. Hargis Bank & Trust Co.
    • United States
    • United States State Supreme Court (Kentucky)
    • November 10, 1931
    ...and nonfeasance. Haynes' Adm'rs v. C., N.O. & T.P.R. Co., supra; Ward v. Pullman Car Corp., supra; and Illinois C.R.R. Co. v. Coley, 121 Ky. 385, 89 S.W. 234, 28 Ky. Law Rep. 336, 1 L.R.A. (N.S.) 370; Chesapeake & O. Ry. Co. v. Bank's Adm'r, supra; Murray v. Cowherd, supra; Evans Chemical W......
  • Request a trial to view additional results

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