Louisville & N.R. Co. v. Brock's Adm'R

• Decision Date: 12 January 1940
• Citation: 281 Ky. 240
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & N.R. Co. v. Brock's Adm'r.

281 Ky. 240

Louisville & N.R. Co. v. Brock's Adm'r.

Court of Appeals of Kentucky.

January 12, 1940.

1. Railroads. — The giving of bell and whistle signals has no other relevancy except to notify travelers on or across track of approach of train, and if its approach was in such manner as to unerringly establish fact that traveler was bound to know of its approach when he entered on track, failure to give signals would become wholly immaterial.

2. Railroads. — If deceased walking along right of way went on track practically immediately in front of train when it was so near as to render it impossible for operators to prevent collision, and when deceased was bound to know of proximity of train, his contributory negligence would defeat right of recovery.

3. Railroads. — A railroad company is not a guarantor of safety of those who might come in contact with its operating trains, and human declared law, as well as law of nature, imposes on and demands of the individual exercise of ordinary care for his own safety, and not to depend on others to assume duties of guardianship over absolute safety of his person.

4. Railroads. — Whether boy walking along right of way knew of approach of train which struck him could be established by circumstances as well as by direct testimony.

5. Railroads. — Under evidence showing that 15-year old boy walking along right of way was bound to know of approach of train which struck him when he entered on track almost immediately in front of train, court erred in not sustaining motion for directed verdict for railroad.

6. Railroads. — In action for death of pedestrian walking along right of way who was struck by train, instruction submitting issue of contributory negligence, which required finding that contributory negligence was sole cause of collision, was erroneous.

Appeal from Harlan Circuit Court.

H.T. Lively, J. Miller White, J.C. Baker and H.L. Bryant for appellant.

R.L. Pope, George R. Pope and R.S. Rose for appellee.

Before James M. Gilbert, Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

Between five and six o'clock P.M. on February 26, 1938, Charles Brock, a lad between fifteen and sixteen years of age, was fatally injured by a train collision on the northbound railroad track of the defendant and appellant, Louisville & Nashville Railroad Company, just beyond the northern corporate limits of the town of Wallins in Harlan county. The later appointed administrator filed this action in the Harlan circuit court against defendant to recover damages sustained by the estate of the decedent on account of the latter's death, charging in his petition that the place where decedent was injured was one where the law imposed the duty on the part of the operators of trains to be on the lookout ahead and to give warnings of the approach of the train thereto, because of the fact that it had been used by a sufficient number of the public as a pedestrian walkway for the length of time to create such obligations on the part of the defendant by way of anticipating the presence of persons at that place and that the operators of the train colliding with decedent had negligently failed to observe such requirements which were the proximate cause of the fatal collision. The answer denied the grounds relied on for recovery, with an additional affirmative defense of contributory negligence, the latter of which was denied, thus forming the issues. Upon the trial — at which extensive evidence was taken and heard — the jury under the instructions of the court returned a verdict in favor of plaintiff for the sum of $4,000 which the court declined to set aside on the defendant's motion for a new trial, and, from the judgment pronounced on that verdict, it prosecutes this appeal.

The motion for a new trial contained eight separate distinct grounds as constituting reversible errors, three of which were and are (a) refusal of the court to sustain defendant's motion for a directed verdict in its behalf, made at the close of plaintiff's testimony as well as at the close of all the testimony; (b) the verdict is not sustained by sufficient evidence and is flagrantly against it; and (c) erroneous instructions (all of which were given upon motion of plaintiff) and the refusal of the court to give offered instructions by defendant after its motion for a peremptory instruction was overruled. The other five grounds embodied in the motions for a new trial are of but little material value since they relate largely to the admission and rejection of testimony of doubtful relevancy, and of equal doubtful weight, and for which reasons we will devote no part of this opinion to a consideration of any of the grounds except those alphabetically listed, supra.

Grounds (a) and (b) relate exclusively to the probative value of the testimony heard at the trial, and they will be considered and determined together, and which require a reference to the testimony directed exclusively to the way, manner, conditions and circumstances existing, and under which the collision occurred, which are necessarily relevant in determining the legal rights of the parties. The great bulk of the testimony was directed to a description of the premises at the point of the accident; i.e., the tracks of defendant, the pathway leading down Laurel branch onto the defendant's right of way at the fatal point; the changing of the road formerly running down Laurel branch many years ago by the defendant when it built its railroad track across Laurel branch where it constructed a culvert through which it turned the road, thereby making an underpass instead of a grade crossing, and which was followed by pedestrians largely continuing to use and appropriate the abandoned portion of the road for some short distance away from the west side of the railroad track and to travel the right of way after getting upon it in going south to the town of Wallins. In some instances, such pedestrian travelers, according to the proof, would cross the track and finally reach the road passing through the culvert after it passed east under the railroad track, and which road then ran between the railroad track and Cumberland River into which Laurel branch emptied some short distance from the railroad. The testimony was also directed to the number of pedestrians who entered upon the railroad right of way and who so traveled it to the old abandoned bank road running up Laurel branch, both in going to or from the right of way. The testimony also described not only the surrounding topography of the immediate adjacent area, but likewise the location of the town of Wallins with reference to the point of the fatal accident, and the railroad tracks, which included a house track running from some point near the depot, located 600 feet from the point of the accident and connecting with the northbound main line of defendant's track at a point some 50 or more feet from where the accident occurred. That house track — which the proof shows was occupied by seven or eight stationary freight cars on the fatal occasion — is entirely east of the two main tracks of defendant and, under the proof, those cars could not and did not obstruct in any manner the ascertainment of an approaching train by one located on the right of way, whether between tracks or upon them, notwithstanding the vehement insistence of counsel for plaintiff to the contrary. Such insistence is sought to be supported by the fact that the main tracks of defendant at the point of the accident — and extending south almost to the depot — is on a slight curve, but neither map (one furnished by plaintiff and one by defendant) shows such a curvature as to make the standing cars an obstruction to either sound from or sight of a train approaching from the south as was the fatal one on this occasion.

The parties were not limited in the number of witnesses they introduced in the portraying of the situation with reference to the matters referred to. Consequently, the testimony of many witnesses was practically a repetition of what others had given, and, in many instances, upon issues about which there was no dispute. Plaintiff's witnesses varied in their estimate of the number of people who traveled as pedestrians the track of defendant at the point of the accident, in either crossing it at that point or traveling upon it longitudinally in going to and from the town of Wallins. Some of the witnesses previously established themselves at the point where the old road, supra, entered upon the right of way of defendant, at which point it had left...