Louisville, C. & L. Ry. Co. v. Goetz's Adm'x

• Decision Date: 13 September 1881
• Citation: Louisville, C. & L. Ry. Co. v. Goetz's Adm'x, 79 Ky. 442, 3 Ky.L.Rptr. 221 (Ky. Ct. App. 1881)
• Parties: Louisville, Cincinnati and Lexington Railroad Company v. Goetz's adm'x.
• Court: Kentucky Court of Appeals

79 Ky. 442

3 Ky.L.Rptr. 221

Louisville, Cincinnati and Lexington Railroad Company v. Goetz's adm'x.

Court of Appeals of Kentucky.

September 13, 1881

1.To instruct the jury that " plaintiff's testimony shows that deceased was familiarly acquainted with the crossing and the time of the passing of trains, and it was his duty to have avoided being run against by defendant's train by keeping off the track at crossing-time, and if he failed so to avoid the train," & c., is error.

2.It interferes with the province of the jury.

3.It requires that all care and caution be exercised by the deceased, but none by appellant.

4.While it is the duty of persons crossing or attempting to cross a railroad track to exercise proper care and caution it is also the duty of the employé s of the railroad or those in charge of the train, to exercise such care and precaution at such places as to prevent injury to those traveling on public highways.

5.The duty in this regard is reciprocal, and the court should have so instructed the jury.

APPEAL FROM KENTON CIRCUIT COURT.

BARNETT & NOBLE FOR APPELLANT.

1.The fact as to negligence is for the jury to decide.A scintilla of evidence is not sufficient to give a case to the jury.( 47 Md. 76;91 E. C. L. R. R., 146;Ib., 72;5 Am Rep., 251.)

2.Only ordinary care and diligence is required of a railroad company toward others than those in its charge.(47 Md. 76; 1 Exchequer, 13;LawR. C. P., 631;P. & M. R. R. Co. v Hoel,12 Bush, 41.)

3.It is the duty of every one about to cross a railroad track to approach it cautiously, and ascertain if there is danger.(87 Ills., 529;22 Minn. 165;12 Bush, 41;58 Ills., 300;63 Ib., 178;73 Pa. St., 503;25 Mich. 274; 4 Vroom, 189;61 Pa. St., 361;105 Mass. 77.)

W. E. ARTHUR AND STEVENSON & O'HARA FOR APPELLEE.

1.To authorize a peremptory instruction to the jury to find for the defendant, it must appear that, admitting the evidence to be true, the plaintiff has failed to support his cause of action.(L. C. & L. R. R. Co. v. Carr, 9 Bush, 734;13 Ib., 643;Shay v. R. &L. T. P. Co., 1 Ib., 109;L. C. & L. R. R. Co., v. Mahoney, 7 Ib., 237;2 Ib., 140;18 B. Mon., 93;2 Mon., 423;U. S. of Shakers v. Underwood,11 Bush, 276;2 B. Mon., 366;17 B. Mon., 29;20 N.Y. 65.)

2.The construction, condition, and contiguous territory with reference to the crossing are essential elements of proof upon the question of negligence.(Claxton's adm'r v. Big Sandy R. R., 13 Bush, 643;13 Bush, 389;P. & M. R. R. Co. v. Hoel, 12 Ib., 44;5 Otto, 162; Shearman & Redfield on Neg., 480-485; 20 N., 65;19 Ills., 499;47 Ills., 298;29 Iowa 55;26 Ind. 76;30 N.J. Law, 188.)

3.The instructions given for appellee are the law.(9 Bush, 737;5 Otto, 164;9 Bush, 732;13 Ib., 642;6 Ib., 578;13 Ib., 389;14 Ib., 523;12 Ib., 45;2 Met., 149;6 Bush, 380;9 Ib., 531;10 Ib., 680;Ib., 273;4 Ib., 509;Gen. Stat., 521;2 Duv., 559;9 Bush, 733.)

4.The court properly refused the instruction asked for by appellee.(9 Bush, 734;12 Ib., 50;5 Otto, 165;Civil Code, 327;L. & P. R. R. Co. v. Smith, 2 Duv., 559;Ib., 115;14 Bush, 524.)

OPINION

PRYOR JUDGE:

The appellee's intestate, Michael Goetz, in attempting to cross the track of the Louisville, Cincinnati and Lexington Short-Line Railroad, at the intersection of that road with the Covington and Independence Turnpike, was run over and instantly killed by a train of cars owned and operated by the appellant.

The widow of the deceased, as his administratrix, instituted the present action under the statute, alleging that her husband lost his life by reason of the negligence, & c., of the employé s of the appellant in running its trains, and recovered a judgment for $4,500 in damages, of which the appellant is complaining.

The testimony conduces to show that the traveler on the turnpike, on his way from Covington to Independence, the direction in which the deceased was going, is prevented from seeing the line of the railway or its trains as he approaches this crossing, by reason of an elevation or high ridge of ground that intervenes, until he reaches a point at or near the center of the railroad track.The intestate, a farmer about forty-three years of age, while driving his team from Covington to his home, in the county of Kenton, about seven o'clock in the evening, while crossing the railway at its intersection with the turnpike, was run over by the cars, and found dead in a few moments afterwards a short distance from the crossing.No one was with the deceased at the time of the accident, and the recovery in the court below was based principally on the statements of those in charge of the train at the time of the accident, and the ground of recovery is, " that the appellant or its employé s failed to give the deceased sufficient warning of the approach of the train, and to use the necessary precaution to apprise those traveling on the turnpike of the danger in attempting to cross at this particular point in the road."

It further appears that the deceased was a careful, thrifty farmer, and familiar with the territory at and near the intersection of the roads, as well as the time the trains usually passed the point at which he was killed.

The train inflicting the injury was on its way from Louisville to Cincinnati, and a minute or two behind its regular time at this crossing.It was running at a speed of thirty miles an hour, and from the statements made by the engineer in charge of the train, it is doubtful whether the deceased could have avoided the injury by the exercise of the utmost vigilance on his part, unless he had kept off the track of the railroad until the train passed.This witness stated, on being interrogated by counsel for the appellant(the company), that when he blew the long whistle, which is the common signal for the approach of the train, he was only sixty or seventy yards from the crossing, or perhaps further; and being again interrogated, stated the train was three hundred yards distant from the intersection when the long whistle was sounded, and the bell was also rung by the fireman, and in this statement he is corroborated by the latter; that he was in forty feet of the intersection when he saw the horses upon the track, and then reversed the engine, using every effort within his power to check the progress of the train.The train at the time was on a down grade, with its speed, as the engineer states, increasing as it approached the turnpike, and it is manifest that no human effort could have prevented the misfortune after the horses had gotten on the track of the railroad and were in the act of crossing it.Numerous instructions were given at the conclusion of the testimony, and several instructions asked for by the appellant were refused.

We deem it necessary to consider only the principal instruction asked for by the appellant, as it is clear, if this instruction embodies the law of the case, the verdict should have been for the defendant.The refusal, or giving of other instructions, did not prejudice the substantial rights of the parties, and besides, the special finding had, on motion of the appellant, shows that the jury passed upon the real issue, and could not have been misled by any instruction given or refused, except the instruction we propose to consider.

That instruction reads: " For the defendant, the jury are told that the plaintiff's testimony shows that the deceased was familiarly acquainted with the crossing and the time of the passing of the trains, and it was his duty to have avoided being run against by defendant's train, by keeping off the track at crossing time; and if he failed so to avoid the train, and placed himself so close to the train as to put it out of the power of the defendant's employé s to avoid injuring him, then the law is for the defendant."This instruction should have been refused for several reasons.

In the first place, it was the province of the jury to pass upon the facts evidencing the neglect of either party, and the court had no right to assume that the deceased was acquainted with the road and its surroundings, or with the time that trains passed.Whether such facts had been established was with the jury and not the court, and particularly when the jury were told that the existence of such facts precluded a recovery.

The court, if the testimony showed negligence on the part of the deceased and not on the part of the company, might have instructed the jury to find for the defendant; but when the jury was left to determine the issue, the court should not have assumed that certain facts had been established conducing either to defeat or sustain the recovery.Again, the instruction requires that all the care and caution should have been exercised by the deceased, and none by the company; for if this instruction is the law, the presence of the deceased on the road is such evidence of negligence on his part as defeats the action.

If the right to the use of this crossing is not mutual, or the company has the exclusive right to its use, then the instruction would not be so objectionable.It is no response to a claim for damages in a case like this to say, that if the deceased had remained off the crossing until the train passed, he would have escaped injury, and his being on the crossing at the time the train passed is evidence of his neglect.

The right of the appellant to run its trains on the road at this point, and at any reasonable rate of speed, is unquestioned but at the same time it is incumbent on the company and its employé s, or those in charge of the train, to exercise such care and precaution as to prevent injuring those traveling on public...