Louisville, Cincinnati and Lexington Railroad Co. v. Goetz's Adm'X.

• Decision Date: 13 September 1881
• Citation: 79 Ky. 442
• Parties: Louisville, Cincinnati and Lexington Railroad Company v. Goetz's adm'x.
• Court: Kentucky Court of Appeals

Page 442

79 Ky. 442

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

Court of Appeals of Kentucky.

September 13, 1881.

APPEAL FROM KENTON CIRCUIT COURT.

BARNETT & NOBLE FOR APPELLANT.

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

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

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 employés 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 employés 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 employés 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....