Illinois Cent. R. R. v. Vincent

• Decision Date: 17 March 1967
• Citation: 412 S.W.2d 874
• Parties: ILLINOIS CENTRAL RAILROAD, Appellant, v. Elro VINCENT, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 874

412 S.W.2d 874

ILLINOIS CENTRAL RAILROAD, Appellant, v. Elro VINCENT, Appellee.

Court of Appeals of Kentucky.

March 17, 1967.

Lively M. Wilson, Stites, Peabody & Helm, Louisville, for appellant.

Benn Hanish, Hanish & Hanish, Louisville, for appellee.

OSBORNE, Judge.

The appellee, Elro Vincent, brought this action against the Illinois Central Railroad company and Benny Jackson for the recovery of damages arising out of an automobile collision. The trial court directed a verdict against Jackson and submitted the question of the negligence of the Railroad to the jury, which awarded appellee $13,429.30 against Jackson and $6,714.65 against the Railroad. Jackson has satisfied the judgment against him; the Railroad appeals.

On January 21, 1964, appellee was driving south on Cane Run Road in Jefferson County approaching a spur track of the Illinois Central Railroad at approximately four o'clock in the afternoon. The road was dry and the weather clear.

The company was operating a railroad motor-car on the spur track. This car is a small four-wheel vehicle propelled by a gasoline engine and is used to transport work crews to and from a job site. It has been designed so that it will not operate the signals that are placed at crossings to warn motorists of oncoming trains. As the appellee approached from the north, he observed the railroad motor-car traveling east toward the intersection. Appellee testified:

'Q. Now, can you tell us generally the character of the area as far as where that track intersects?'

'A. Well, there is a little rise about two hundred feet before you get to the railroad crossing. But it was in January and there wasn't no leaves to amount to anything. The stop was there, but you could see through it. I could see the motor-car, the signal light was not working and the flagman was by the side of the motor-car. He was not out there flagging traffic.'

'Q. Now, Mr. Vincent, as you approached the intersection of these railroad tracks as shown on the photographs, what rate of speed were you operating the vehicle?'

'A. From thirty to thirty-five miles an hour.'

'Q. Now as you approached this track, about where were you when you first observed a vehicle on the railroad track itself?'

'A. I would say from fifty to sixty feet.'

'Q. And about how far west of the highway was this vehicle and what kind of vehicle was it, if you please?'

'A. It was a motor-car and it was about twenty to thirty feet from the intersection.'

'Q. And what did you do upon seeing that motor car?'

'A. I began to stop.'

'Q. Now, did you being your car to a gradual stop or did you suddenly stop?'

'A. It was a gradual stop.'

After the appellee stopped, his automobile was struck in the rear by an automobile driven by Benny Jackson. The impact knocked his car across the tracks. There was no collision between the Railroad motor-car and the appellee's car. In addition to the damage to his automobile, appellee suffered a neck injury.

Jackson in his testimony stated that he was following the Vincent car at a distance of approximately two car lengths. As he approached the crossing he decided to light a cigarette and attempted to reach into his pocket to get it. When he looked up from his futile attempt, he saw the brake lights of Vincent's car and immediately applied his brakes. However, he was too late and he struck the car knocking it across the tracks. William Burba testified that he saw Jackson apparently attempting to get a cigarette before he struck appellee's car.

The Railroad contends that it was not guilty of any negligence that contributed to the cause of the accident. Three elements are necessary to support a negligence action. They have been stated in numerous opinions of this court, the last being Williams v. Ehman, Ky., 394 S.W.2d 905. There it was said: 'The problem of what constitutes actionable negligence is clearly stated in Warfield Natural Gas Co. v. Allen, (1933) 248 Ky. 646, 59 S.W.2d 534, 91 A.L.R. 890: 'Actionable negligence consists of a duty, a violation thereof, and consequent injury. The absence of any one of the three elements is fatal to the claim.' See also Chesapeake and Ohio Ry. Co. v. Carmichael, (1944) 298 Ky. 769, 184 S.W.2d 91; Louisville & N.R. Co., v. Vaughn, (1942) 292 Ky. 120, 166 S.W.2d 43; Eaton v. Louisville & N.R. Co., et al., (1953) Ky., 259 S.W.2d 29; Leonard v. Enterprise Realty Co., (1920) 187 Ky. 578, 219 S.W. 1066, 10 A.L.R. 238.'

The common law duties of a railroad in the operation of its trains are to give an adequate warning of the approach of a train, keep a look-out...