Kelsch's Guardian v. C. & O. Ry. Co.

• Decision Date: 14 November 1933
• Citation: 251 Ky. 332
• Parties: Kelsch's Guardian v. Chesapeake & O. Ry. Co. et al. Kelsch's Administrator v. Chesapeake & O. Ry. Co.
• Court: United States State Supreme Court — District of Kentucky

251 Ky. 332

Kelsch's Guardian v. Chesapeake & O. Ry. Co. et al.

Kelsch's Administrator v. Chesapeake & O. Ry. Co.

Court of Appeals of Kentucky.

Decided November 14, 1933.

1.

Railroads. — What degree of care is required of railroad to protect travelers at crossing is jury question.

2.

Railroads. — Evidence that traveler was killed at crossing and that train did not give usual or statutory signals is sufficient to take case to jury (Ky. Stats., sec. 796).

3.

Railroads. — Refusal of instruction, in crossing collision case, as to whether railroad should have given warning signals in addition to bell and whistle, held not error under evidence (Ky. Stats., sec. 786).

Evidence for the plaintiffs showed that at time occupants of automobile looked they could see in direction from which train came a distance of 150 feet from their position in automobile. No ordinance was introduced requiring presence of watchman at crossing, and it was shown to the satisfaction of jury that electric bell was ringing and that railroad company caused whistle to sound at crossing, though testimony of plaintiffs' witnesses was that they did not hear the bell or whistle.

4.

Railroads. — Evidence that electric bell was in perfect condition and was operating on morning following accident held competent in crossing collision case (Ky. Stats., sec. 786).

Appeal from Bracken Circuit Court.

HUBBARD SCHWARTZ for appellants.

BROWNING & DAVIS for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

This appeal presents for review the trial of two actions, one for the injury of Robert Kelsch and the other for the death of Charles Kelsch by the collision of an automobile, in which they were riding, with a train of the Chesapeake & Ohio Railway Company, operated by Guy Hiles, engineer, on the 2d day of March, 1930, between the hours of 10 and 10:30 p.m. at the intersection of Third street and Seminary avenue in the city of Augusta, Ky. The train consisted of the engine and tender and several freight cars, all together about one-half mile in length. It was operated westwardly over Third street, and the automobile in which the Kelsches were traveling was going southwardly over Seminary avenue. The railroad yard was on the East side of Seminary avenue on which there were switching and yard tracks, a watchman's lookout house, the freighthouse, and a hump of earth, in height about five feet, used by the railroad company to stop cars. Also there were at that particular time on the side track, in the yard, five or six flat cars which the railroad company had placed during the day of March 2, 1930.

There was located at this crossing an electric crossing bell to warn travelers of the approach of trains. A watchman was kept at the crossing between the hours of 7 a.m. and 5 p.m., but he was not on duty at the time of the accident. Also there was an electric bell at Frankfort street crossing one block west of the intersection of Third street and Seminary avenue and another at Hamilton avenue, 1,000 feet east of Seminary avenue.

It had been snowing on the night of the accident and at the time it happened there was snow on the ground. A cold wind was blowing "and it was a terribly cold night."

The automobile in which they were traveling was closed, except a little window at the top of the rear was partly open. Charles Kelsch was driving with his brother Robert and Rex McCane, they occupying the seat with him. The train was traveling at about the rate of 12 miles per hour, and the automobile in which they were riding, at less than 15 miles per hour just before reaching the railroads tracks. When within about 12 feet of the tracks, McCane said, "Lookout for trains." All of the occupants of the automobile leaned forward and looked up and down the tracks, but could neither see nor hear a train. Thereupon Charles Kelsch shifted into second and started to cross, and just as the automobile reached the main track they first saw the train immediately upon them, which struck the automobile killing Charles Kelsch and injuring Robert. The evidence is not clear as to whether the automobile came to a full stop or merely slowed up, but at the time they looked for the train, they could see in the direction from which the train came a distance of 150 feet. The cars on the side track were about two cars length from the crossing. The headlights on the engine were burning and the engine was nine feet higher than the flat cars.

The case was tried twice. The first resulted in a disagreement of the jury; the second in a verdict for the railroad company. In the first trial Robert Kelsch testified, and he admitted on the second trial that he did so, that at the time the automobile stopped or slowed down it was thirty feet from the track. On the present trial he testified that he could see a distance of 150 feet, but admitted that on the first trial he testified that he could see from the point where the automobile stopped or slowed up, in the direction from which the train was traveling, a distance of two squares. He explained this discrepancy in his testimony by saying that since the first trial he had measured the distance and discovered it was 150 feet. Henry Carr, Stanley Cox, and Bess Reynolds were traveling in an automobile about 150 feet in the rear of the car occupied by the Kelsches and McCane. The testimony in behalf of the Kelsches is that the ringing of the signal bell and the sound of the whistle of the train were not heard at the time of, and immediately before, the accident. That in behalf of the railroad...