Johnson's Adm'r v. Louisville & I.R. Co.

• Decision Date: 26 February 1923
• Citation: 199 Ky. 524,251 S.W. 843
• Parties: JOHNSON'S ADM'R v. LOUISVILLE & I. R. CO. [a1]
• Court: Kentucky Court of Appeals

251 S.W. 843

199 Ky. 524

JOHNSON'S ADM'R v. LOUISVILLE & I. R. CO. ^[a1]

Court of Appeals of Kentucky.

February 26, 1923

Rehearing Denied June 22, 1923.

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

Action by W. H. Johnson's administrator against the Louisville &amp Interurban Railroad Company. From a judgment for defendant plaintiff appeals. Affirmed.

W. W. Thum and Chas. C. Wheeler, both of Louisville, for appellant.

Alfred Selligman and Straus, Lee & Kreiger, all of Louisville, for appellee.

SETTLE J.

In a collision between the automobile in which he was riding and a car of the appellee, Louisville & Interurban Railroad Company, occurring on a public grade crossing at the intersection of the Taylorsville turnpike and the latter's railroad track near Lennert Station, 6 1/2 miles from Louisville, W. H. Johnson, a resident of that city, was so injured that he died two days later. Shortly thereafter the appellant, W. H. Johnson, following his appointment and qualification as administrator of the decedent's estate, brought this action against the appellee in the court below seeking the recovery of damages to the amount of $50,000 for the latter's death, alleging in the petition that it was caused by the negligence of its motorman in charge of the car.

The answer of the appellee denied any negligence on its part or that of its motorman, and pleaded contributory negligence on the part of the decedent, alleging that but for same the collision resulting in his death would not have occurred. The plea of contributory negligence was denied by the appellant's reply. The trial of the case in the court below resulted in a verdict and judgment for the appellee, complaining of which, and of the subsequent overruling of his motion and grounds for a new trial by that court, the administrator has appealed.

It was contended by the appellant on the trial in the court below that the crossing in question was an unusually dangerous one; that the motorman operating the car failed, in approaching the crossing, to give the statutory or customary signals of its coming; and that he was running the car at an unusual and dangerous rate of speed. It appears from the map and photographs found in the record that at the place of the accident the Taylorsville turnpike runs in a southeasterly direction towards Jeffersontown, and that the track of the appellee's railroad there crosses the turnpike at grade, and in a somewhat diagonal course. It also appears that the turnpike roadway has a width of 26 feet, the macadamized part of it a width of 18 feet; and that the roadway included in the crossing and approaches is occupied by 130 linear feet of railroad track. Such obstructions as might have tended to prevent one in approaching the crossing in an automobile, as did the decedent, from seeing a car coming on the railroad track, as did that of the appellee, were not within or on the side of the roadway, but on ground along and adjoining the railroad right of way. These obstructions consisted of a four-foot hedge, a few scattering trees, and two or three telephone poles. But it is fairly apparent from the map and photographs that for a distance of 150 or 200 feet before reaching the crossing the objects mentioned could not have obstructed the vision of one looking in the direction of the approaching car, who like the decedent was approaching the crossing in an automobile by traveling in the direction of Jeffersontown; and the appellee's motorman, who was the only eyewitness of the accident, testified without contradiction that when first seen by him the decedent's automobile was about 200 feet from the crossing. It would seem, therefore, that within that distance from the crossing there was nothing to prevent the decedent from seeing the car before its arrival at the crossing, and that by looking in that direction he could have done so as readily as his automobile was seen by the motorman on the car.

There was, however, a considerable amount of evidence in behalf of the appellant conducing to prove that the crossing is a very dangerous one, and of such character as required of the appellee in using it greater care for the safety of travelers on the turnpike than is customarily employed at the average crossing. On the other hand, there was also evidence for the appellee tending to prove that the crossing in question is not more dangerous than the average railroad crossing. The question as to whether the crossing was or not an unusually dangerous one was submitted to the jury by an instruction from the trial court, which, after correctly defining the reciprocal duties owing by the decedent and motorman in approaching and going upon the crossing, the former as a traveler of the turnpike in his automobile and the latter as operator of the appellee's interurban car, in substance told them that, if they found from the evidence that the crossing was an unusually dangerous crossing, and by reason thereof the signals of the the car for the crossing customarily given by the sounding of the car whistle and ringing of the bell were insufficient to give notice to persons at or near the crossing of its approach, and this was known or by the use of ordinary care could have been known to the appellee, then it was its duty and that of the motorman to use such other means to prevent injury to travelers at the crossing as in the exercise of a reasonable judgment by ordinarily prudent persons operating interurban railways might be considered necessary. In view of the appellant's contention respecting the dangerous...