Johnson v. Mobile & O.R. Co.

• Decision Date: 30 November 1917
• Parties: JOHNSON v. MOBILE & O. R. CO. ET AL.
• Court: Kentucky Court of Appeals

198 S.W. 538

178 Ky. 108

JOHNSON v. MOBILE & O. R. CO. ET AL.

Court of Appeals of Kentucky.

November 30, 1917

Appeal from Circuit Court, Ballard County.

Action by Dollie Johnson, administratrix, against the Mobile & Ohio Railroad Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. B Wickliffe and W. A. Anderson, both of Mobile, Ala., for appellant.

John E Kane, of Bardwell, and S. R. Prince, of Wickliffe, for appellee Mobile & O. R. Co.

E. T Bullock, of Clinton, Trabue, Doolan & Cox, of Louisville, and Wheeler & Hughes, of Paducah, for appellee Illinois Cent. R. Co.

HURT J.

The Chicago, St. Louis & New Orleans Railroad Company owns a line of railroad which extends through the town of Wickliffe, in Ballard county. Through the town of Wickliffe the road has two tracks which are parallel, but the evidence entirely fails to show what the distance is between the tracks, either at the point where the tragedy, which is the subject of this action, occurred, or at any other place, but presumably the tracks are within a few feet of each other. The course of the tracks through the town of Wickliffe is a north to south direction. The trains which pass over the road from the south to the north travel upon the track which is nearest to the east, and this track is called the "north-bound" track, while the trains which travel from the north to the south pass over the track which is nearest to the west, and this track is called the "south-bound" track. Court street in Wickliffe runs in a direction from east to west, and crosses the railroad tracks and leads from the principal portion of the town to the Mississippi river, which is beyond the railroad tracks from the principal business and residence portion of the town. On the north side of Court street, where it crosses the railroad tracks, a footway or sidewalk extends along the street and over the tracks, for the use of the foot passengers in traveling the street. The town contains a population of 700 to 800 persons.

On the 23d day of December, 1914, at about 6:20 p. m., James Johnson, who was about 50 years of age, was sent by his employer to deliver a rug to a house which is on the west side of the railroad tracks, and between them and the river, and near the railroad tracks, but it is impossible to gather from the evidence whether the location of the house was to the north or to the south of the intersection of Court street with the railroad tracks. One witness deposes that the tracks are on an ascending grade from Court street toward the south, while another testifies that the grade is an ascending one from Court street both toward the north and the south. The deceased went toward the west along Court street with the rug, and when he arrived at the tracks the witness says that "he went up the railroad to a brick building that stands out from the depot down there." Shortly after deceased crossed the railroad tracks he returned to or near to the footway over the railroad tracks, described above, and just at the time a freight train which was operated by the Illinois Central Railroad Company passed over Court street on the "north-bound" track, at a speed of seven to eight miles per hour. It seems that Johnson was about the foot crossing between the two tracks, when, about the time that the rear end of the north-bound train was passing over Court street, an engine with a caboose attached passed over the "south-bound" track, at a speed of from 20 to 25 miles per hour, and passed over Court street going toward the south, at the same time that the rear end of the freight train was passing over the crossing going toward the north. When the trains had passed, the body of Johnson was discovered lying between the two tracks, about 1 1/2 feet from the footway over the tracks, and with his head about 18 inches from the east rail of the "south-bound" track. His body lay in a direction from southeast to northwest, with his head toward the latter direction. A cut was upon the head of the body, but upon what portion of the head the evidence does not disclose. The left leg was broken, and some of the ribs upon one side or the other of his body were also broken. The body was lifeless when discovered, though yet warm. The hour of his death was after nightfall, but there was a street light upon each side of Court street at its intersection with the tracks, and four of such lights were in front of the depot, which was on the east side of the railroad tracks and from 75 to 100 feet north of the crossing, but the evidence does not disclose anything by which it could be determined what amount of light existed over the crossing.

This action was instituted by the administratrix of decedent against the appellees, Mobile & Ohio Railroad Company and Illinois Central Railroad Company, to recover of them the damages which his estate suffered from the destruction of his life. The petition contains an averment that the Illinois Central Railroad Company operates its trains over the road as a lessee of the Chicago, St. Louis & New Orleans Railroad Company, and that the Mobile & Ohio Railroad Company operates its trains over the road under authority granted it by the Illinois Central Railroad Company. This averment was not denied by the Mobile & Ohio Railroad Company, but the Illinois Central Railroad Company denied, by an amended answer, that the Mobile & Ohio Railroad Company used the road under any authority or permission granted by it. Four specific acts of negligence were charged in the petition, and it was averred that each of the appellees was guilty of these acts of negligence. They were as follows: First. The servants of appellants who were operating the trains operated them at such a dangerous rate of speed, at the time and place at which decedent was killed, that he was unable to avoid them. Second. They did not give warnings or sufficient warnings of the approach of the train to the crossing to enable decedent to avoid them and keep out of the way. Third. They approached the crossing without keeping the trains under proper control, so as to avoid injury to one upon or near to the tracks at the crossing. Fourth. They were not keeping a lookout. These averments of negligence were denied by each of the appellees by a separate answer.

At the conclusion of the evidence offered by appellant, the court sustained the motion of appellees to direct a verdict in favor of each of them, and a judgment was rendered upon the verdict, dismissing the petition. The appellant's motion for a new trial was overruled and she has appealed, and the only question for consideration is, Was there any evidence of actionable negligence upon the part of either of the appellees?

Several witnesses deposed to the passing of the trains and the finding of decedent's body and the physical facts surrounding it, but none of them ever saw decedent until his lifeless body was found, except one, who...