Louisville & N.R. Co. v. Mitchell's Adm'X.

• Decision Date: 04 March 1941
• Citation: 285 Ky. 576
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & Nashville R. Co. v. Mitchell's Adm'x.

285 Ky. 576

Louisville & Nashville R. Co. v. Mitchell's Adm'x.

Court of Appeals of Kentucky.

March 4, 1941.

1. Railroads. — One who stooped to tie his shoe or get gravel out of it near railroad track, and without raising up entirely started across the track, apparently without having looked at the approaching train, was guilty of contributory negligence precluding recovery from railroad for his death when he was struck by train.

2. Railroads. — In action for death of deceased who was struck by train when he momentarily stooped to tie his shoe and then stepped in front of train, instruction on contributory negligence was improperly qualified by statement in effect excusing deceased from contributory negligence if in stepping in front of train he momentarily forgot where he was, where the evidence disclosed that deceased fully knew of the near approach of the train.

Appeal from Whitley Circuit Court.

Tye & Siler, H.C. Gillis, J. Miller White and H.T. Lively for appellant.

C.B. Upton and R.L. Pope for appellee.

Before Flem D. Sampson, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

G.S. Mitchell was killed by appellant's train at a crossing in the village of Woodbine, Whitley County. We reversed a judgment for $4,000 in favor of his administratrix, being of opinion that the decedent was guilty of contributory negligence as a matter of law. Louisville & N. Railroad Company v. Mitchell's Administratrix, 276 Ky. 671, 124 S.W. (2d) 1025. The evidence is fully set out in the opinion. Upon a second trial the evidence was the same, with some additional proof that Mitchell was hard of hearing. A verdict for $5,000 was returned against the railroad company. It insists that the former opinion being the law of the case, the judgment must be reversed because of the error of the court in refusing a peremptory instruction in its favor.

The appellee submits that the statement in the opinion that Mitchell was trying to beat the train over the crossing was not warranted and that the trial court properly submitted the case under what appellee calls the doctrine of "momentary forgetfulness." The statement obviously is our conclusion from the evidence and upon that rests the decision that the decedent was negligent. As related in the opinion, it was uncontradicted that the whistle of the engine had been blown for another crossing 1,922 feet away and had also called for the signal board, perhaps 100 feet beyond the whistling post for the Woodbine crossing. Because of some contradiction — though not satisfactory — that in addition the statutory signals had not been given for the crossing and because of a possible inference that the enginemen had not been keeping a lookout, we proceeded on the hypothesis that the evidence of the company's negligence in those particulars was sufficient to have taken the case to the jury had not the evidence established the decedent's contributory negligence. We may proceed on the same hypothesis now and look again to the...