Illinois Central R.R. Co. v. McGuire's Admr.
| Decision Date | 09 June 1931 |
| Citation | 239 Ky. 1 |
| Parties | Illinois Central Railroad Company et al. v. McGuire's Administrator. |
| Court | United States State Supreme Court — District of Kentucky |
4. Municipal Corporations. — Presumption is ordinance was regularly adopted.
5. Municipal Corporations. — Ordinance appearing regular on its face, burden was on railroad attacking it to show invalidity.
6. Municipal Corporations. — Ordinance having been properly proven, burden is on adverse party to show repeal.
7. Evidence — Ordinance, once enacted, is presumed to continue in force, and party relying thereon need not show it was not repealed.
8. Railroads. — Ordinance requiring railroad to maintain flagman at crossing held admissible, in action for death, to show railroads' noncompliance therewith (Ky. Stats., sec. 3490-25).
9. Railroads. — In action for death of motorist, killed at railroad crossing, ordinance requiring stationing of flagman was properly admitted, though not pleaded, where action was not based on ordinance, but on negligence; ordinance being only evidence of negligence.
10. Railroads. — Railroad owning line had authority to lease its property to other railroad (Ky. Stats., sec. 769).
11. Railroads. — Lessor of railroad's line, though without control over management, is liable for actionable negligence of lessee.
12. Railroads. — Ordinance requiring flagman at crossing was construed as applicable to any railroad company operating line therein described.
Ordinance applied to named railroad company or other company or persons operating railroad line known by certain name. So far as record showed, there was no other railroad line running through city.
13. Railroads. — In action for motorist's death at railroad crossing, ordinance requiring flagman to be maintained held properly admitted against lessor of railroad.
14. Railroads. — Railroads' admission of failure to keep flagman at crossing under ordinance was admission of negligence not excused by any other precautions.
15. Appeal and Error. — Where railroads in effect admitted negligence, held instruction, if error, could not be prejudicial.
16. Railroads. — Whether motorist killed at railroad crossing in city was contributorily negligent held for jury.
17. Appeal and Error. — Railroads in effect admitting negligence and motorist's contributory negligence being for jury, whether evidence authorized sudden peril instruction held immaterial.
18. Railroads. — Failure to maintain flagman under ordinance being negligence regardless of other precautions, instructions railroad had right to erect depots and other structures and to place cars allegedly obstructing view at crossing held properly refused.
Instructions were properly refused, since they would have been irrelevant because, admitting such right of railroad, railroad would not be relieved of duty to maintain flagman at crossing.
19. Appeal and Error. — Admitting evidence railroad maintained flagman at other times, as required by ordinance, held not prejudicial against railroad, in view of railroad's admission no flagman was on duty at time of crossing accident.
20. Appeal and Error. — Permitting witness to testify regarding experience at railroad crossing some time prior to fatal accident held not prejudicial, where court thereafter excluded evidence from consideration of jury.
21. Railroads. — In action for motorist's death at railroad crossing, evidence motorist was inexperienced driver held properly excluded.
Such evidence was properly excluded, since man may be inexperienced driver and yet drive carefully, and question material was what parties did at time of accident, not what was their custom or practice.
22. Railroads. — In action for death of motorist at railroad crossing on a Sunday morning, evidence motorist was intoxicated Saturday night held properly excluded as too remote.
23. Appeal and Error. — Counsel's improper argument, if not prejudicial to adverse litigants, will not justify reversal.
24. Trial. — Argument of plaintiff's counsel that defendant railroad violated law, represented by ordinance, by not maintaining flagman at all times at crossing, though so doing on week days, accident occurring Sunday, held not improper.
25. Trial. — Counsel may give jury his analysis of evidence, if based on evidence or inferences reasonably deducible therefrom.
26. Appeal and Error. — In railroad crossing case, counsel's allegedly improper argument held not prejudicial, in view of admitted negligence of railroad and verdict not showing passion or prejudice.
Appeal from Graves Circuit Court.
ROBBINS & SMITH; TRABUE, DOOLAN, HELM & HELM and R.V. FLETCHER for appellants.
GARDNER, McDONALD & HOLIFIELD for appellee.
Affirming.
The administrator of the estate of T.H. McGuire recovered a judgment against the Illinois Central Railroad Company and the Chicago, St. Louis & New Orleans Railroad Company for the sum of $15,000 in a suit growing out of a street crossing accident in the city of Mayfield. Mayfield is a city of the fourth class, containing a population of about 8,000. The railroad tracks run north and south through the western part of the town. A greater number of the inhabitants resides on the east side of the tracks. Broadway street crosses the railroad tracks at an acute angle. The crossing is much traveled by the public. The accident out of which this litigation grew occurred at 8:58 a.m. on Sunday, January 30, 1927.
Three railroad tracks cross the street at the Broadway crossing. One is the main line, which is to the east, and is the track on which the train was running when the accident occurred. The first track west of the main track is a switch track, known as the "house track." The second switch track to the west is known as the "wagon track," and it is 40 feet west of the main line track.
There are a number of buildings about this crossing, and their location has been established by minute measurements. The purpose of showing with particularity the location and character of buildings was to establish that the crossing was unusually dangerous, as the approach of trains was obscured by the buildings. There were freight cars on one of the switch tracks. It was the contention of appellee that the location of the buildings and the location of the freight cars on the switch track were such as to render the crossing unusually dangerous, while this position was combated by appellants with the same particularity as exercised by appellee in establishing its contention on this point.
Broadway street is 50 feet wide between the curbs, with a pavement about 5 feet wide on each side. It is practically a straight level street, although there is a slight dip approaching the railroad tracks from the west. We hardly think it worth while to follow the evidence in detail showing that the crossing was, or was not, unusually dangerous. The facts and circumstances show that it had been regarded for years as a dangerous crossing by the railroad companies, and extreme caution was usually exercised to prevent accidents.
On the morning of the accident, T.H. McGuire approached the railroad tracks from the west in his automobile at a speed of about 12 miles an hour. The train approached the crossing from the north at about the same speed. McGuire was on the south side of Broadway. There is a sharp dispute in the evidence as to the point at which he could have first seen the approaching train. There is a sharp dispute in the evidence as to whether the crossing signals were sounded, when signals were given, or whether a proper lookout was maintained. There is no dispute in the evidence on the point that no flagman for the railroad companies was present in the exercise of his duties at the time of the accident. There is no dispute in the evidence that a man saw the danger of the collision and attempted to warn McGuire of the approaching danger, but, whether McGuire saw, or understood, the warning is not established. There is no dispute in the evidence from circumstances that McGuire saw the approaching train and attempted to stop his automobile. There is evidence that he was looking north apparently for an approaching train as he approached the railroad tracks. There is no dispute in the evidence about the fact that McGuire was familiar with the crossing and had crossed it from the east to the west within less than thirty minutes before the accident. It is not disputed that the train was on time. It is not disputed that the engineer applied his brakes and did what he could to stop the train after he discovered that McGuire was going to drive upon the track; yet there is a conflict in the evidence when all circumstances are taken into consideration as to whether the engineer could have discovered the approaching peril to McGuire sooner than he testified that he discovered it.
The automobile driven by McGuire and the engine of the train reached the crossing about the same time, resulting in a collision that caused the death of McGuire. The...
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