Louisville & N. R. Co. v. Troutman

• Decision Date: 22 November 1961
• Citation: 351 S.W.2d 516
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Ruby TROUTMAN, Adm'x. of Estate of Marshall Troutman, Deceased, Appellee.

Page 516

351 S.W.2d 516

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Ruby TROUTMAN, Adm'x. of Estate of Marshall Troutman Deceased, Appellee.

Court of Appeals of Kentucky.

Nov. 22, 1961.

Glenn W. Denham, Middlesboro, Henry L. Bryant, Pineville, R. H. Daugherty, James M. Terry, James F. Wheeler, Louisville, for appellant.

Cawood Smith, G. E. Reams, Harlan, for appellee.

STANLEY, Commissioner.

The appeal is from a judgment for $10,000 against the appellant, L. & N. Railroad Company, for the death of Marshall Troutman, who was killed at a grade crossing in a village in Harlan County which the record calls both LeJune and Shields. The appellant contends the trial court should have directed a verdict in its favor because of absence of evidence of negligence or because of conclusive proof of contributory negligence. Alternatively, a reversal is claimed because of error in giving an instruction concerning an extrahazardous or exceptionally dangerous crossing.

The crossing and surroundings are clearly portrayed by plats and photographs, but a clear word picture is difficult to present. The track runs northeast and southwest but in the interest of simplicity we use the cardinal points. It is practically straight for a half mile or so north of this crossing. The train was southbound.

Kentucky Highway No. 38 parallels the railroad 150 feet on the east. A gravel or worn macadam road goes west from the highway for about 100 feet, then makes a jog to the left of forty feet or more and then turns right and crosses the railroad track practically at right angles. A significant fact is that an old vacant storehouse, 75 or 80 feet long, on the north edge of this road between the highway and the track blocks a traveler's view of a train coming from the north. But when a traveler gets beyond that building, he has an open view and can see a train coming down the track for at least 2,000 feet, although an automobile driver has his back to the north for a few feet before entering upon the railroad track. Another structure is an old coal tipple on an abandoned parallel spur track 583 feet from the road crossing. At the time of the accident in January, 1958, there were some weeds and bushes along the edge of the railroad or perhaps some within the right of way, but photographs made when the conditions were the same show that these weeds and bushes formed no substantial obstruction to the view of a man in an automobile of a closely approaching train.

The crossing is what is generally called a 'country crossing' of a public road. If it is not to be regarded as an extrahazardous crossing by reason of its location and surroundings, the question of negligence on the part of the railroad company is determinable by proof of its failure to comply with safety requirements of the statute, namely, (1) to maintain a signal crossing board that may be easily seen by travelers, KRS 277.160, and (2) to ring a locomotive bell or sound its whistle 'at least fifty rods' from the crossing and continuously or alternatively until the engine reached the crossing. KRS 277.190. If the evidence was sufficient to describe prima facie an extrahazardous crossing, there was the added common law duty of the railroad company to protect the traveling public. That duty is generally defined to be to use such other or additional means to prevent injury to travelers as in the exercise of ordinary prudence or judgment might be considered necessary to afford protection.

It is undisputed that there was a proper crossing sign board at the crossing.

All the evidence was to the effect that the engine whistle or diesel horn had been blown for or about where Highway No. 38 crosses the track 2,000 or 2,100 feet north of the Shields crossing. The plaintiff's evidence that such warning was not given between that point and the crossing (which would be necessary to comply with the statutory requirement of warning within fifty fods or 825 feet of it) was mainly by witnesses who apparently were not listening or were not in a situation to hear the whistle or bell if it had been sounded. On the other side there was very positive evidence by the trainmen and two disinterested witnesses whose attention was directly called to the whistle that it was blown. We do not decide whether or not the evidence as a whole was sufficient in weight to establish a reasonable inference of negligence in this respect, or of proximate cause. Nor need we determine whether the evidence was or was not sufficient to warrant the instruction on additional or greater precautions than the statutory warnings because the crossing could be regarded as extrahazardous in character.

We consider the question of whether the court should have held as a matter of law that the deceased was contributorily negligent.

Two witnesses introduced by the plaintiff testified to the accident. An eleven-year-old boy, who was called principally to testify that the train whistle was not blown, testified on...