Louisville & I.R. Co. v. Schuester

• Decision Date: 07 March 1919
• Citation: 183 Ky. 504,209 S.W. 542
• Parties: LOUISVILLE & I. R. CO. v. SCHUESTER.
• Court: Kentucky Court of Appeals

209 S.W. 542

183 Ky. 504

LOUISVILLE & I. R. CO. v. SCHUESTER.

Court of Appeals of Kentucky.

March 7, 1919

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Carl P. Schuester against the Louisville & I. Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Alfred Selligman, Straus, Lee & Kreiger, and Howard B. Lee, all of Louisville, for appellant.

Nathan Kahn, of Louisville, for appellee.

CLARKE J.

Guetig's Lane, a public road, crosses appellant's track a short distance east of the corporate limits of the city of Louisville, and near the crossing, at which appellant maintains an automatic electric alarm bell, there is a building on the western edge of the highway, which is 27 feet from the railroad track, with a porch that extends to within about 16 feet of the track.

At about 10 a. m. June 21, 1916, appellee, driving his automobile truck, loaded with milk and passengers north on Guetig's Lane, attempted to cross appellant's track at the crossing, when an east-bound work train struck the truck. Alleging the collision was caused by the gross negligence of appellant's agents in charge of its work train, appellee instituted this action, and recovered a verdict and judgment for $1,500 for the destruction of his truck, $200 for loss of its use, and $145 for the loss of cans and milk.

To reverse that judgment, the defendant relies upon three grounds: (1) The verdict is flagrantly against the evidence (2) the instructions put upon defendant a higher duty at the crossing than upon plaintiff; and (3) the measure of damages was erroneously defined.

1. As plaintiff approached the crossing his view of the railroad track in the direction the work train was coming, as well the view of the train crew of the road on the side from which plaintiff was approaching, was for a time completely obstructed by the building above described, and somewhat interfered with, if not completely obstructed, by some large trees near the railroad track, about 70 or more feet west of the crossing. Appellant testified that as he neared the crossing he reduced the speed of his truck to 4 or 5 miles an hour, looked up and down the track 25 or 30 feet, as he passed from behind the store building, and listened for signals of an approaching train; that he could have seen down the track 70 or 80 feet, to where it was almost covered by four large trees in full foliage; that he saw no train; that no signals of any kind were given from the train, and that the stationary automatic bell was not ringing; that he then fixed his attention upon the railroad crossing, which was rough and in bad condition, in order to drive his truck across the track with as little jar to his milk and passengers as possible; that he could have stopped his truck within a foot, or almost immediately; that just as he got on the track some one said "Jump!" and, looking up, he saw the train was within 25 or 30 feet of him; that its whistle and bell sounded just before it hit his truck.

Quite a number of witnesses were introduced by both parties as to whether the train gave signals of warning as it approached the crossing, and whether the stationary bell was ringing with the usual result; some witnesses testifying one way, and about the same number the other. So there can be no doubt the issue as to defendant's negligence was for the jury, as was also, we think, the question of plaintiff's contributory negligence, since we would be unwilling to say as a matter of law plaintiff was negligent in fixing his gaze upon the crossing after looking up and down the track, as he testified he did, even though possibly he might have been able to have seen the train's approach in time to have stopped his truck before reaching the crossing, had he kept his eyes constantly on the tracks, since prudence demanded of him that he should give a part of his attention, at least, to the road and crossing over which he had to drive his truck, especially since the crossing was rough and in bad condition, and he was under no absolute duty to stop. L. & N. R. Co. v. Treanor, 179 Ky. 337, 200 S.W. 634.

There was, in our judgment, ample evidence to support the verdict upon the questions of negligence and contributory negligence, and we find no merit in the first contention.

2. Instruction No. 1, defining defendant's duty with respect to the crossing, clearly proven to be an unusually dangerous one, required of it care commensurate with the danger, and of this there is no complaint; but it is insisted the court erred in instruction No. 2, in not placing upon plaintiff the same duty of exercising increased care commensurate with the increased danger; and this is true, since we have unformly held that the rights and duties of the company and highway travelers with reference to an unusually dangerous grade crossing are reciprocal, and that in its use each must exercise the same degree of care commensurate with the danger. L. & N. R. Co. v. Locker's Adm'r, 182 Ky. 578, 206 S.W. 780; L. & N. R. Co. v. Breeden's Adm'r, 111 Ky. 739, 64 S.W. 667, 23 Ky. Law Rep. 1021, 1763; C., N. O. & T. P. Ry. Co. v. Champ, 104 S.W. 988, 31 Ky. Law Rep. 1057; L. & N. R. Co. v. Parks' Adm'r, 154 Ky. 269, 157 S.W. 27.

But in this case the defendant is not in a position to avail itself of this error, because instruction No. 2, of which it complains, is almost an exact copy of, and in substance identical with, the only instruction it asked the court to give upon the subject. Gorman's Adm'r v. Louisville Ry. Co., 72 S.W. 761, 24 Ky. Law Rep. 1938; L. & N. R. Co. v. Wilson, 148 Ky. 251, 146 S.W. 422; McClintic Marshall Con. Co. v. Eckman, 153 Ky. 707, 156 S.W. 382.

3. Instruction No. 4 defined the measure of damages thus:

"No. 4. If you find for the plaintiff, you will award to the plaintiff such sum in damages as you believe from the evidence will reasonably and fairly represent the difference in the reasonable market value of the motor truck just before it was injured and its reasonable market value immediately after it was injured; and if you believe from the evidence that the motor truck could be repaired at a less cost than its reasonable market value before it was injured, then you will also award to the plaintiff the reasonable net rental value upon the market in Louisville of the truck in question, or other trucks of like capacity and equal performance, the lessee furnishing the driver and bearing all such other expenses as the owner himself would have to bear in the operation of his truck for such length of time as would be reasonably necessary to make such repairs, not to exceed a period of three weeks, at $25 a day, and not to exceed $525. If you believe from the evidence that the motor truck could not be repaired, then, in addition to the difference between the market value of the truck just before it was injured, not exceeding $2,675, and the market value of the truck immediately after it was injured, not less than $350, you will award to the plaintiff the rental value of a truck, as in this instruction defined, for such time as you believe from the evidence would necessarily elapse until a truck of like capacity to the truck in question could be purchased and delivered for use in Louisville, not to exceed on that account 32 days, at $25 a day, and not exceeding $800. Your verdict in no event, for injury to the motor truck, shall exceed what you

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