L. & N.R. Co. v. Chas. S. and F. Mahoney

• Decision Date: 15 March 1927
• Citation: 220 Ky. 30
• Parties: Louisville & Nashville Railroad Company v. Charles S. Mahoney. Same v. Forest Mahoney.
• Court: United States State Supreme Court — District of Kentucky

220 Ky. 30

Louisville & Nashville Railroad Company v. Charles S. Mahoney.

Same v. Forest Mahoney.

Court of Appeals of Kentucky.

Decided March 15, 1927.

1. Railroads. — Under complaint alleging train ran into plaintiff's automobile, plaintiff could show by evidence that as matter of fact automobile ran into or near side of passing freight train, where automobile was struck by caboose steps, upsetting it and causing injuries; there being no variance between pleading and proof in such case.

2. Railroads. — In action by passengers in automobile for injuries from collision with passing train, plaintiffs could show that wigwag bell signal at crossing, on which they relied, was out of order, indicating no train was passing; evidence of condition of signal being material on question of railroad company's negligence, where road was so constructed that train could not be seen except at extremely close range on making abrupt turn.

3. Railroads. — Traveler upon highway may rely upon statutory signals of trains to guide him even at private crossing near public crossing.

4. Railroads. — Highway traveler, injured at railroad crossing as result of negligence of trainmen in failing to give statutory signals, could recover, even though engine had passed crossing before traveler reached that point.

5. Railroads. — Passengers in automobile, injured at crossing by passing train with which they collided because wigwag signal at crossing was standing still and not ringing, could show bell signal was

out of repair for some hours prior to accident, in order to prove signal bell was out of order for sufficient length of time for railroad to have discovered its condition and to have corrected it.

6. Railroads. — In action by passengers in automobile for injuries at crossing by collision with passing train through failure of signal bell to indicate train's passage, plaintiffs were required to prove signal bell had been out of order for sufficient length of time for railroad to have discovered condition and corrected it before accident.

7. Railroads. — Persons in automobile were under duty to have lights of reasonable strength and brilliancy; failure to have such lights being negligence in action against railroad for injuries in crossing collision.

8. Damages. — Verdict of $12,500 to man injured in crossing accident, who suffered crushed vertebra, paralyzing lower limbs, rendering him permanently unable to walk or stand on his feet, held not excessive.

9. Damages. — Verdict of $800 for injuries to person injured in crossing accident held not excessive, where suffering was intense and some time was lost and money spent in effecting cure, though person had about recovered at time of trial.

Appeal from Nelson Circuit Court.

WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN and KELLEY & KELLEY for appellant.

FULTON & FULTON and OSSO STANLEY for appellees.

OPINION OF THE COURT BY JUDGE SAMPSON.

Affirming.

Appellees, Charles S. Mahoney, and his brother, Forest Mahoney, were riding in a Ford coupe driven by Dalton Mahoney along the public highway near New Haven, in Nelson county, on the night of December 26th, 1923, when the car in which they were riding came in collision with a train of appellant company at a road crossing, overturning the coupe and injuring both of appellees, Charles in his back, a vertebrae being crushed, and Forest in other parts of his body. The jury awarded Charles $12,500 and Forest $800 in damages. There was a verdict by the same jury and judgment in each case, and this appeal is from both judgments.

The instant case was an unusual one in that the train colliding with the automobile was a long freight composed of forty odd cars, the engine to which had passed the crossing some distance and had turned around a curve out of sight before the appellees in the coupe ran up to the crossing and came into collision with the last car next to the caboose of the train. There is a map and several photographs showing the contour of the grounds around the crossing and the trees and building and other obstructions to view which are situated near the crossing as well as the location of the highway to the railroad. Between the highway and the railroad for most of the distance from the station to the crossing, which is about a mile away, there is a slight hill or ridge, which prevents one riding in a car on the highway from seeing a train upon the tracks. The highway makes a short abrupt turn around the point of the hill when it gets very near the crossing and a traveler upon the highway can not see the crossing until he gets within a few feet of it. The night of the accident was a dark and rainy one. The lights on the Ford coupe were functioning, but, as light travels in a straight line in front of the car, it did not reflect upon the crossing or disclose that there was a train passing over the crossing until the car was turned around the bend at the crossing and had started in that direction going at the rate of 12 to 15 miles an hour, and was then so close to the railroad track that it was impossible for the driver to stop the car before striking the train, and, in an effort to avoid striking the train, he turned his car to the left and ran along the side of the track a short distance but coming so near the side of the train that the steps on the caboose, which came along very quickly thereafter, struck the Ford coupe in the back, upsetting it and throwing it over an embankment, causing the injuries of appellees. Appellees and the driver, Dalton Mahoney, were well acquainted with the crossing and its surroundings and had been for several years next before the accident. They had lived in that community for a number of years and only a short distance from the crossing. At the crossing and on the side of the track to which the coupe was approaching stood a post on which there was an electric wigwag alarm signal to warn travelers upon the highway of the approach or presence of a train upon the track, and appellees as well as Dalton Mahoney knew of the wigwag bell and that it would ring and wigwag when a train approached the crossing and while a train was on the crossing. As appellees came to the crossing...