Justice's Admr. v. C. & O.R. Co.
| Decision Date | 19 February 1932 |
| Parties | Justice's Administrator v. Chesapeake & Ohio Railroad Company et al. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Boyd Circuit Court.
JOHN T. DIEDERICH and McLAUGHLIN and STOKER and LOVELL LILES, for appellant.
BROWNING & REED for appellees.
Affirming.
At about 7 a.m. on October 29, 1927, William Justice was killed at a grade crossing in South Portsmouth, Greenup county, Ky., by a manifest freight train operated by the appellee and defendant below Chesapeake & Ohio Railway Company, colliding with a truck driven by decedent. The appellant and plaintiff below, John T. Diederich, was appointed and qualified as the administrator of the deceased and later filed this action against defendants the railway company and its engineer, in the Boyd circuit court to recover damages for the alleged negligent killing of plaintiff's decedent. The answer was a denial of the alleged negligence and a plea of contributory negligence, the latter of which was controverted. At the trial of the issues thus made, the jury under the instructions of the court returned a verdict for defendants, followed by a judgment dismissing the petition, to reverse which plaintiff prosecutes this appeal.
But one argument is made by appellant in support of his sole general ground for a reversal of the judgment, and which is: Error of the court in giving and refusing instructions. As argued in brief that ground may be subdivided into: (a) Error of the court in giving to the jury instruction No. 4 without the insisted on modification contained in instruction X offered by plaintiff and refused by the court; and (b) error of the court in refusing to give to the jury instructions Y and Y-1 offered by plaintiff.
Before taking up the subdivisions for final disposition, it is appropriate at this point to make a brief statement of the salient and material facts as testified to by the witnesses. Decedent was employed by a business firm located across the Ohio river in Portsmouth, Ohio; a portion of his duties being the operation of a truck from the place of business of his employer across the Ohio river to South Portsmouth, Ky., in the transportation and procuring of freight to and from the railroad depot in South Portsmouth. From the ferry landing on the Kentucky side of the river to the fatal crossing, beyond which was located the freight depot in South Portsmouth, is upgrade, and the road leading to the railroad track from the ferry landing to a point within 60 or 75 feet of the track is winding to some extent; but from that point to the railroad track it is comparatively straight and crosses the railroad at practically right angles. The railroad runs east and west, and the colliding train was traveling west on the most northern track from which direction deceased was moving. From various points along the road before reaching the crossing persons traveling it, as was decedent, could see an approaching train from the east for different distances dependent upon the location, but when within 30 or 35 feet of the track there was an unobstructed view of the approaching train from the east for between 400 and 500 feet, and the obstructions to the view of the train approaching from the same direction by one farther away from the track were only partial ones, such as telegraph or telephone poles and possibly some shrubbery. The testimony, as usual in such cases, was conflicting upon the issue of signals for the crossing, but as we read the record it preponderated in favor of the proper signals being given. The larger portion of plaintiff's testimony on that issue was of a negative character, the witnesses giving it not saying that the proper signals were not given, but only that if given they did not hear them.
However, there was a small number of witnesses for plaintiff who testified that the signals were not given. The train was running at a speed of 35 or 40 miles per hour, and the decedent was traveling with his truck at a speed of about 4 miles per hour, which was reduced to about 2 miles just before entering upon the track. The engineer testified that he saw the truck some distance from the track which he estimated between 25 or 30 feet, but he designated on the map used at the trial a point considerably farther away, and stated in substance that inasmuch as he had given the signals, and the bell was ringing, he judged that the driver of the truck was aware of the approaching train, and that because of the slow speed at which he was traveling, plus the fact that he was going upgrade, he would stop his truck before entering upon the track and that he did check the speed as if to stop some 8 or 10 feet from the track, but at which time the train was close to the crossing. Instead, however, the truck moved upon the track and was struck by the train, resulting in the death of decedent, as well as that of a Mr. Ferguson, who was riding on the running board of the truck on its right side, the decedent sitting in the cab of the truck on its left side next to the approaching train. The foregoing is a condensed statement of the material facts descriptive of how the accident occurred, as well as the situation and appearances as pictured to the engineer, who also stated that he could not and did see what direction decedent was looking as he approached, and as he came upon, the track.
The leading instruction No. 1 embodied the requisite care to be exercised by the operators of the train on approaching the crossing. Other instructions defined "negligence" and "ordinary care," and submitted the issue of contributory negligence. No. 4, given by the court to the jury, was in these words:
"The Court instructs the jury if such warning of the approach of the train described in the evidence as defined in Instruction No. 1 was given before decedent reached the railroad track, and while he was in a place of safety, then those in charge of the train had the right to presume that the decedent, William Justice, would heed such warning and keep out of danger, and were entitled to rely upon such presumption until it became reasonably apparent to them that the decedent had not heard, or did not intend to heed, said warning."
No. X, offered by plaintiff and refused by the court, was a qualification of No. 4 given by the court...
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