L. & N.R. Co. v. Curtis' Administrator
| Decision Date | 28 March 1930 |
| Citation | 233 Ky. 276 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Louisville & Nashville Railroad Company v. Curtis' Administrator. Same v. Parish's Administrator. Same v. McKiddy's Administrator. |
6. Appeal and Error. — Though it is duty of Court of Appeals, under Civil Code of Practice, sec. 340, subsec. 6, to reverse judgment based on verdict of jury flagrantly against weight of evidence, mere contradictions of evidence for successful party, though by many more witnesses, does not warrant court in interfering, as it is only when testimony for other party, together with proven circumstances, overturns prima facie case, or when evidence for successful party is impaired by impeachment that judgment will be reversed.
7. Appeal and Error. — In action for death of automobile occupants in collision of automobile with train at crossing, admission of testimony that electric bells failed to ring on occasions some months preceding accident, and as to probable speed of train, considering distance automobile was carried by impact with engine, and testimony of undertaker as to bruises found on dead bodies to illustrate violence of collision, if error, held not prejudicial, since matters were inconsequential.
8. Appeal and Error. — Under Civil Code of Practice, sec. 756, the Court of Appeals is not authorized to reverse judgment, unless substantial errors, reasonably calculated to affect prejudicially rights of appellant, are manifested by record.
Appeals from Lincoln Circuit Court.
ASHBY M. WARREN and K.S. ALCORN for appellant.
L.L. WALKER, J.S. OWSLEY and KELLY J. FRANCIS for appellees.
Affirming.
A passenger train of the Louisville & Nashville Railroad Company collided with a Chevrolet coupe at a highway crossing in the town of Stanford, Ky. The coupe at the time of the collision was being driven by Chester A. Curtis, and Robert E. Parish, Mrs. Daisy Pearl McKiddy, and Elbert Elmer Strong were riding with him. Parish owned the car, and Curtis and Strong were his employees. Mrs. McKiddy was a passenger or guest, but the difference in relationship of the various persons to the coupe plays no part in the case. All of the occupants of the coupe, except Strong, perished in the catastrophe. C. Hays Foster qualified as personal representative for each of the persons killed, and instituted three separate actions against the railroad company to recover damages for the respective estates on the ground that the collision was the consequence of negligence in the operation of the train. The defense was a denial of negligence on the part of defendant, and a claim of contributory negligence on the part of the decedents. The cases were tried together, resulting in a verdict for $6,000 in favor of the Curtis estate, and for $5,000 in favor of the plaintiff in each of the other cases. The railroad company appeals. The cases have been heard together in this court, and will be disposed of in a single opinion.
The errors relied upon for a reversal of the judgments are: (1) That the defendant was entitled to a peremptory instruction; (2) that the verdicts are flagrantly against the evidence, and (3) that certain testimony was erroneously admitted.
1. The argument for a peremptory instruction is predicated upon two grounds, both of which involve an appreciation of the evidence. The first is that there was no tendency of the evidence to show negligence on the part of the railroad company, and the second that the several decedents were guilty of such contributory neglect as to preclude, in any event, a right of recovery. The four occupants of the automobile were residents of Iowa. They were returning home from Georgia, where they had spent the winter. Parish was engaged in the business of tree surgery, and Curtis and Strong worked for him. Mrs. McKiddy was the mother of Curtis, and during the time they were in Georgia had been employed in her trade as a barber. The Chevrolet coupe belonged to Parish, and he was carrying the others back home pursuant to an agreement so to do. In addition to the four persons, the coupe was carrying about two hundred pounds of tools, five suitcases, and a wardrobe trunk.
The party had left Atlanta, Ga., about 4 o'clock on the afternoon of March 20, 1928, and had traveled all night. They arrived at Pine Knot, Ky., between 6 and 7 o'clock the next morning, where they had breakfast. From that time until the collision with the train occurred Curtis did the driving. Parish and Mrs. McKiddy sat on the seat of the coupe with the driver, and Strong sat in front on a small box, with his head resting in the lap of Parish. They arrived at Stanford, and were proceeding north to Danville. The collision with the train occurred at the Danville street crossing. None of the occupants of the car had been over the road before. A signal post with a cross-arm bearing in large letters the words "Railroad Crossing" is maintained on each side of the railroad at the crossing. The post itself is painted with alternating stripes of white and black, and upon it about fifteen feet above the level of the street is an electric alarm bell. Electric flash-lights with red lenses are attached to the post below the cross-arms. The bells and flash-lights are on the same electrical circuit, so that when the bells begin ringing the lights flash on and off. The train came from the west, or, as the trainmen call it, the south, and the approach to the crossing from that direction is through a cut. The cut extends for some distance, and a house stands on the south side of it near the crossing.
The view of the railroad to the west from the public road as the crossing is approached from the south is obstructed until the traveler is within a few feet of the crossing. There is dispute as to the exact distance, but it is clear from the evidence that a train could not be seen until the traveler on the highway had cleared the northernmost part of the house. The south side of the cut is considerably higher than the railroad track. Strong, the only occupant of the car that survived the accident, testified that they approached at a speed of about 15 miles an hour, and did not observe that a railroad crossing was near until the train was within 8 or 10 feet of them, when they were practically upon the crossing. Some witnesses for the defendant testified that, when about 10 feet from the crossing, the emergency brake on the automobile was applied, which would tend to show the time Curtis discovered the danger. No warning of the approaching train was heard by the occupants of the car, and none of them were aware of it until the train was upon them. Several witnesses in a position to hear testified to the effect that no signals or warning were heard by them. There was evidence that the electric bell was not heard by people near it. Plainly the evidence was sufficient to take the case to the jury on the issue of negligence on the part of the defendant.
In Chesapeake & O. Railway Co. v. Brashear's Adm'x, 124 S.W. 277, we said: See, also, Chesapeake & O. Ry. Co. v. Hawkins (Ky.) 124 S.W. 836; Payne, Agent, v. Barnette's Adm'r, 196 Ky. 489, 244 S. W. 896; Collett's Guardian v. Standard Oil Co., 186 Ky. 147, 216 S.W. 356; Cincinnati, N.O. & T.P.R. Co. v. Jones' Adm'r, 166 Ky. 820, 179 S.W. 851. The same reasoning controls the decision of the question respecting the contributory negligence of the driver and occupants of the car. Chesapeake & O.R. Co. v. Hawkins (Ky.) 124 S.W. 836; Louisville & N.R. Co. v. Taylor, 104 S. W. 776, 31 Ky. Law Rep. 1142; Louisville Gas & Electric Co. v. Beaucond, 188 Ky. 725, 224 S.W. 179; Louisville & N.R. Co. v. Galloway, 219 Ky. 595, 294 S.W. 135.
It is the duty of travelers in an automobile approaching a railroad crossing to exercise the care of an ordinarily prudent person under similar circumstances. Davis, Director General, v. Davis, 195 Ky. 522, 242 S.W. 870. Appellant insists that decedents made no effort of any kind to discover the approach of the train. They had the right to rely upon their...
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