HARRIS
Justice.
The
appellants state the case:
'This
is a suit for damages for personal injury and damages to an
automobile, arising out of a collision occurring between an
automobile, owned by the appellee, which was being driven
by him in a southerly direction on Olive Street, and a
passenger train of the Southern Railway Company going east
toward the intersection in the Western part of the City of
Louisville, Kentucky, on September 26, 1942 at about 8:05
P.M. * * * The jury found a verdict in favor of the
plaintiff for $5,600.00 against both defendants. The motion
for a new trial, with supporting grounds, which was filed
in the lower Court by the defendants was overruled, and
from the judgment entered on the verdict of the jury the
defendants have prosecuted an appeal to this Court. * * *
Olive Street runs north and south and the tracks, which
belong to the Kentucky & Indiana Terminal Railroad Co., on
which the Southern Railway train was being operated, run
east and west. There were two main tracks at
that point, and north of them a side track. The passenger
train was running on the south main track in an eastwardly
direction and the K. & I. freight train was running west on
the north main tracks. The railroad tracks curve in a
northwestwardly direction to some extent from the western
side of Olive Street, though they are practically straight
for a distance of about 230 feet west of Olive Street. At
the northwest corner of the intersection of the tracks and
Olive Street there were some small wooden buildings, which
caused an obstruction of view. The Kentucky & Indiana
Terminal Railroad Co. had installed and maintained red
flasher lights on both sides of the tracks on Olive Street.
* * * The lights operated automatically and at the same
time when a train going in either direction, east or west
came on the circuit, and they kept flashing on and off
until the train was off the circuit, or if there were two
trains on the circuit
at the same time, until both were off. When the lights were
flashing on the south side, they were also flashing on the
north side, and when the red lights were so flashing, the
white telltale lights on the east and west side of each
semaphore were also burning, which was notice to engine men
approaching Olive Street that the red flasher lights were
in operation as a warning to persons traveling south and
north on Olive Street, approaching the tracks. The same
light that showed through the red flasher lenses also
showed white through the telltale lens. When a train was
going west on the north main track, the red lights and
white telltale lights at Olive Street would begin to
operate when the train reached a point 1,110 feet east of
Olive Street. When a train, such as the passenger train
here, was going east toward Olive Street, the flasher
lights and the telltale lights at Olive Street would start
operating when the train reached a point 785 feet west of
Olive Street. * * * The engineer could not see the
automobile approaching from the north side of the tracks,
because the boiler of his engine cut off his view
northweardly. Moreover, until the moment of the accident
the freight train was between the automobile and the
passenger train, which obstructed the view of both the
fireman and the engineer. The automobile approached the
tracks on the fireman's or left side of the passenger
locomotive. * * * The engineer of the passenger train
testified that his train was approaching Olive Street at a
speed of 12 to 15 miles an hour. * * * The engineer, upon
receiving the danger signal from the fireman,
put on his emergency brakes immediately and ran the length
of the engine, tender, and two baggage cars and a few feet
more, or about 140 or 150 feet, beyond the crossing. * * *
The engineer and fireman testified that they were on the
lookout ahead, that the automatic bell on the engine was
ringing as the train approached Olive Street, and the
headlight of the engine was burning, which cast its rays
for a considerable distance ahead of the train and could be
seen easily by anyone approaching the crossing. The
engineer of the passenger train saw the telltale light on
the south side of the tracks on the west side of the
semaphore burning when he was 230 feet west of the crossing
and knew therefore that the red flasher lights were in
operation at Olive Street as a warning to the public not to
attempt to cross the tracks, as a train was coming. The
engineer testified that the stop he made was a good one. He
said that if the train had been going 40 miles an hour at
that place, he could not have stopped short of 500, or more
likely 600 feet, * * *.
'Aaron
Q. Keith, introduced by the defendants, testified that he
was a locomotive engineer of 27 years' experience and
he rode along these tracks eastwardly toward Olive Street
on this train later, sitting on the engineer's seatbox,
and they could see the telltale light burning in the
semaphore when at 230 feet west of Olive Street. He further
said that if the train had been going 40 miles an hour, it
could not have been stopped in less than 500 or 600 feet.
In
addition to the evidence which was in substance and effect as
indicated in the statement above, as well as in addition to
evidence showing that the flasher lights were properly
functioning both before and after the accident, and that
reasonable inspection had been maintained, the fireman on the
passenger train testified:
'Q.
41. Did you see the one on the northwest corner of the
intersection? A. No, sir; because that--it sets back behind
the coal-yard there, and you cant see it, approaching it from
around the curve that way.
'Q.
42. That is for westbound trains, anyhow, is it not? A. Yes,
sir.
'Q.
43. And the one on the southeast corner is for eastbound
trains, is it not? Is that right? A. Well, there is no----
'Q. 44. For the engineer? A. Yes, sir.
'Q.
45. Now, did you or not see this semaphore on your side
before the accident? A. No, sir.
'Q.
54. You could not see the light for the coal shed? A. That is
right.
'Q.
58. Can you see one the way you approached there on account
of the coal shed? Tell the jury that? A. I can see it when we
go over Olive Street.
'Q.
59. As you go over the street, then you can see it, that is
for the first time? A. Yes, sir.'
On the
other hand the appellee and his witnesses testified:
'Mr.
Ryan: The bell was not ringing and the train was traveling
forty miles an hour.
'Mr.
Ryan: On the occasion in question the train was travelling
forty miles an hour. On other occasions he had observed that
when the last car of a train was on the crossing the signal
lights would quit flashing.
'Mr.
Skarman: Q. 21. Did you see the lights stop? A. Yes, sir.
'Q.
22. State whether or not the lights were working as Mr.
Cantrell started or as he drove on the track. A. They were
not; because I was going myself--I was going to go across at
the same time--and I wouldn't have gone if they were
working.
'Q.
23. Do you mean you started across? A. I started, too, and I
would have gone if he hadn't gone first.
'Q.
24. I want you to tell the jury whether or not you are
positive about the lights. A. Yes, I am positive the lights
weren't working, because I wouldn't have tried to go
across if they had been.
'Q.
25. Were you looking at them? A. Yes, sir.
'Q.
26. How long had you been standing there? A. About three or
four minutes.
'Q.
27. How long had Mr. Cantrell been standing there? A. About
the same time.
'Q.
28. Where was his automobile--the automobile in which he was
riding--in reference to the automobile in which you were
riding? A. Just a little bit ahead of me; about
three-fourths of a car. I had pulled up a little bit
alongside of him.
'Q.
29. You mean you had pulled up a little bit alongside of Mr.
Cantrell? A. Yes sir.
'Q.
30. After the freight train passed what, if anything, did you
start to do? A. I started to go across, too.
'Q.
62. Was there any bell ringing on the train? A. There was
not.
'Q.
63. Mr. Skarman, did you take opportunity to observe the
signals at the crossing within a few days? A. I noticed it
many times since that, we have stopped and watched there when
other trains crossed there, exactly the same set up, and it
would stop like that--The following week we noticed it more
than ever because it was so recent--the accident.
'Q.
65. Did you in the week following the accident observe those
signals at that crossing? A. Yes, sir.
'Q.
66. State to the jury whether or not they worked then? A.
They did not.
'Q.
67. Was the situation under which you observed them the week
following the same as the situation was at the time this
occurred? A. Very similar, there would hardly be any
difference unless it would be passenger trains, both of them,
or freight trains, both of them--I don't remember--but it
was the same set up exactly.'
The
appellee:
'A.
Well, when I left Miss Ruth Lucas out at the church, I was
returning home, and when I had reached Woodland and Olive, I
made a left turn,...
