Louisville & Interurban R. Co. v. Morgan

• Decision Date: 16 March 1917
• Citation: 174 Ky. 633
• Court: Kentucky Court of Appeals
• Parties: Louisville & Interurban Railroad Company v. Morgan.

Page 633

174 Ky. 633

Louisville & Interurban Railroad Company v. Morgan.

Court of Appeals of Kentucky.

Decided March 16, 1917.

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

ALFRED SELLIGMAN, FRANK P. STRAUS, HOWARD B. LEE, HUSTON QUINN and ALFRED KRIEGER for appellant.

DAVID R. CASTLEMAN, O'NEAL & O'NEAL and PRYOR & CASTLEMAN for appellee.

OPINION OF THE COURT BY JUDGE HURT — Affirming.

On the line of the Louisville & Interurban Railroad Company, extending from Louisville to Fern Creek, is a station called Greenberg. It is eight miles from the city of Louisville. At this point the Bardstown turnpike runs parallel with the tracks of the railroad. At the south side of the railroad right of way and east and west of Greenberg station is the farm of E. H. Morgan, which adjoins the railroad's right of way. A macadamized road leaves the turnpike and running a little west of south crosses the railroad track just west of the station and passing immediately by the station, enters the Morgan farm. The cinder platform made around the shelter house at the station adjoins the macadamized road at its crossing over the railroad tracks and the shelter house, which is surrounded by the cinders, is about twenty feet from the center of the crossing. It is about forty feet from the tracks of the railroad along the macadamized road to the edge of the traveled portion of the turnpike, and a mail box stands on the north side of the turnpike, just opposite the point where the macadam road intersects the turnpike, and the mail box is seventy-five feet from the center of the tracks, where the macadam road crosses them. The entrance into the Morgan farm is forty-eight feet, in a direction a little west of south, from the crossing. For a short distance on each side of the station, the fence between the right of way and the Morgan farm is curved toward the south, until the distance between the tracks and fence, at the apex of the curve, which is opposite the shelter house, is forty odd feet from the tracks, while immediately west and east of the station the distance between the tracks and the fence is only about fifteen feet. This curve is presumably to give room around the station for such uses as may be necessary. Just west of the station and on the right of way between the tracks of the railroad and the turnpike, and three or four feet from the tracks is a row of trees. The trees are eight in number and stand at intervals along the track, the first one being fifteen or twenty feet from the crossing, and the most westerly one probably near three hundred feet from the crossing. Upon some of these trees the limbs are eight or ten feet from the ground, and upon others of them the limbs hang nearer to the ground. Upon the second tree, to the west of the crossing, at the time of the occurrence hereinafter related and for several months theretofore, there was a large limb, which had broken down and was lying upon the ground alongside the tracks. On one of the days, at the beginning of the month of July, when the trees were in full leaf, including the broken down limb mentioned, the appellee, Marjorie Morgan, who is the wife of E. H. Morgan, and resided with her husband and family upon the farm, which has been described as lying to the south of the railroad right of way and east and west of the Greenberg station, approached the macadam road along the Bardstown pike, from in the direction of Louisville, in an automobile, with the purpose of passing over the crossing and going to her residence. The chauffeur was a colored man, by the name of Mickens. In the automobile, besides the chauffeur and appellee, was Lieut. James Castleman, who was sitting on the seat with appellee. When they reached the mail box, the machine was stopped and the chauffeur dismounted and took the mail from the box and handed it to appellee. Just at this time, the two young daughters of appellee having observed her approach from their home, ran over the crossing and to the automobile and got upon the seat between the appellee and Lieut. Castleman. The automobile was then turned into the macadam road, which led from the turnpike over the crossing at the station, and just as it got upon the railroad track, one of the cars of appellant company, approached the crossing from the west and collided violently with the automobile. The occupants of the automobile were thrown out of it to a distance of about twenty feet, and some of them fell upon each side of the track opposite the shelter house at the station. While painfully hurt, they miraculously escaped any serious or permanent injuries. The automobile, however, was substantially demolished. It was pushed sidewise along the tracks for nearly thirty feet, when the car stopped. Two of the wheels of the automobile were broken off, and the body of the machine twisted into a crescent shape, and it was otherwise injured so seriously that it was totally unfit for use. This action was instituted by the appellee to recover the damages suffered from the personal injuries sustained by her, and, also, for the damages suffered for the wrecking of her automobile, and the value of the use of it, while it was undergoing the necessary repairs to make it again serviceable. The trial below resulted in a verdict of the jury and a judgment of the court in her favor for the sum of twelve hundred dollars in damages. The motion for a new trial by the appellant having been overruled, it has appealed from the judgment to this court.

(1) The grounds of complaint are, that the court erred in instructing the jury, and in refusing to instruct the jury as requested by appellant. By instruction No. 1, the court advised the jury, in substance, that it was the duty of the motorman on appellant's car to keep a reasonable lookout ahead for persons upon the tracks at the crossing, or so near to the track as to be in danger of being struck by the car, and if the jury believed from the evidence, that before the time of the collision the crossing had been, with the knowledge of those who operated the cars, so used by the public such a length of time, that those operating the cars had reasonable grounds to anticipate the presence of persons and vehicles upon the crossing, it then became the duty of the motorman to give timely warning of the approach of the car by sounding his whistle and to run the car at a reasonable rate of speed, and that it was the duty of the motorman to exercise ordinary care to so run and operate the car as to avoid coming into collision with persons and vehicles on the crossing, and if the jury believed from the evidence, that the motorman failed in any one or more of these duties and thereby caused the car to collide with appellee's automobile, and that appellee was injured or the automobile damaged thereby, that the law was for the appellee and the jury should so find.

(a) The objections urged to the instruction are, that it was not proper to instruct the jury that it was the duty of the motorman to keep a lookout ahead of the car for the presence of persons upon the crossing or so near to the track as to be in danger of being struck by the car, because there was no evidence to the effect that the motorman was not keeping such a lookout. The motorman, alone, testified that he was maintaining such a lookout ahead and no one expressly contradicts him in that statement, but there are some circumstances in the evidence from which the jury might have inferred, that he was not maintaining such a lookout, but, aside from this reason for embracing in the instruction the duty of the motorman to keep a lookout ahead upon the track for the presence of persons upon it at such a crossing or so near to the tracks as to be in danger of being struck by the car, it may be said that such was a duty of the motorman, and that in such cases as the instant one, it is proper to give an instruction, which defines the duties of the motorman, and to keep a lookout is an important one of those duties. In Louisville Ry. Co. v. Byers, 130 Ky. 443, the same objection was made to an instruction and for the same reason as here. The court said:

"But whether there was any evidence of a failure of the motorman to keep a lookout or not, that part of the instruction objected to was nevertheless proper, and it has been repeatedly approved by this court in cases similar to this. . . . .

"It is necessary in such cases to define, in instructing the jury, the several duties imposed by law upon a motorman in operating an electric car, and none of these is more important than that of maintaining a lookout."

Such instruction has been approved in Louisville Ry. Co. v. Hutchcraft, 127 Ky. 531; Louisville Ry. Co. v. French, 24 R. 1278; Louisville Ry. Co. v. Bossmeyer, 104 S. W. 337; Owensboro City Ry. Co. v. Hill, 21 R. 1638; Louisville Ry. Co. v. Boutellier, 33 R. 484, and others.

(b) Another objection urged to the instruction is, that it submits to the jury the circumstances under which, at such a crossing as the one where the collision occurred, it became the duty of the motorman to give warning of the approach of the car, and to operate the car in approaching the crossing, at a reasonable rate of speed. The circumstances under which the jury was advised, that it was the duty of the motorman to give timely warning of the approach of the car, and to operate it at a reasonable rate of speed in approaching the crossing, were, that the crossing had been, with the knowledge of the motorman, so used by the public and for such a length of time that the motorman, as a reasonable man, would anticipate the presence of persons and vehicles making use of the crossing. The contention of the appellant is, that the crossing was a private one and made use of by the appellee and her family, only, and being such the appellant was authorized to operate its cars at such speed as was consistent with the safety of its passengers, and did not owe the duty of...