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

• Decision Date: 01 October 1935
• Citation: 260 Ky. 380
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & N.R. Co. et al. v. Ratliff's Adm'r.

Page 380

260 Ky. 380

Louisville & N.R. Co. et al. v. Ratliff's Adm'r.

Court of Appeals of Kentucky.

Decided June 21, 1935.

As Modified on Denial of Rehearing October 1, 1935.

1. Evidence. — In railroad crossing collision cases, where issue is whether train gave signals, negative evidence ordinarily is not of same weight as positive, but testimony of those who had an opportunity to hear, but did not hear any signals, is admissible, and weight to be given it is for jury (Ky. Stats., sec. 786).

2. Evidence. — In railroad crossing collision cases, where issue is whether train gave signals, negative testimony to effect that witness did not hear signals given, where witness is near enough to hear them, is sufficient to sustain a jury's verdict, although it conflicts with other evidence that warning was actually given (Ky. Stats., sec. 786).

3. Evidence. — In railroad crossing collision cases, where there is positive testimony that signals were given by train, purely negative testimony is of little weight, but jury when considering its verdict, and court in reviewing it, should give some weight to negative testimony (Ky. Stats., sec. 786).

4. Railroads. — In action for death of truck driver and destruction of truck resulting from railroad crossing collision, whether train failed to give proper signals upon approaching crossing held for jury (Ky. Stats., sec. 786).

5. Railroads. — While truck driver approaching railroad crossing had duty to exercise ordinary care to learn of approach of train and to exercise ordinary care for his own safety, he was entitled to rely on train crew performing its statutory duty of sounding whistle and ringing bell upon approaching crossing (Ky. Stats., sec. 786).

6. Railroads. — Truck driver nearing railroad crossing as train approached should not be held to that degree of accuracy of judgment in acting to avoid collision as though he had had time for deliberation or had heard train whistle or bell, where crossing did not become visible until one was within 360 feet of it, and others near crossing declared they had not heard whistle or bell (Ky. Stats., sec. 786).

7. Railroads. — If truck driver nearing railroad crossing as train approached had heard neither whistle nor bell of train until he was so near or on crossing that his life was in peril because of fault of those in charge of train, railroad could not escape consequences of fault of train crew on theory of contributory negligence of driver (Ky. Stats., sec. 786).

8. Railroads. — In action for death of truck driver in railroad crossing collision, plaintiff was entitled to invoke principle that it will not be presumed one will voluntarily do or fail to do an

act that places his own life in peril, but it will be presumed that he took ordinary precaution in existing emergency for his own safety.

9. Railroads. — In action for destruction of truck and death of truck driver in railroad crossing collision, evidence held to sustain finding that driver was not contributorily negligent (Ky. Stats., sec. 786).

10. Railroads. — Truck driver in approaching railroad crossing did not have duty to stop, look, and listen before attempting to cross railroad track, but had duty only to use such care as would be usually expected of an ordinarily prudent person to learn of approach of train and keep out of its way, and if he failed to exercise such care, and but for such failure he would not have been injured, railroad was excused from liability.

11. Railroads. — In railroad crossing collision cases, where it is shown that witnesses were in position to hear and were possessed of usual auditory faculties and able to hear train whistle or other signals, but did not hear such signals, case is one for jury, even though train crew testified that signals were given (Ky. Stats., sec. 786).

12. Railroads. — Whether truck driver was killed at railroad crossing because of his failure to exercise that degree of care that prudent persons ordinarily exercise under like circumstances or by reason of train crew not giving statutory signals was for jury, where men of ordinary judgment might differ under the evidence, and railroad was not entitled to have issue determined solely by testimony of its witnesses, but jury could accept testimony either of plaintiff's witnesses or of railroad's (Ky. Stats., sec. 786).

13. Railroads. — In action for destruction of truck and death of truck driver in railroad crossing collision, speed of truck was merely circumstance to be considered in connection with other evidence tending to prove contributory negligence of driver (Ky. Stats., sec. 786).

Appeal from Letcher Circuit Court.

ASHBY M. WARREN, C.S. LANDRUM and D.I. DAY for appellants.

E.J. PICKLESIMER, W.K. STEELE and W.L. BOLLING for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

We are required to review a trial to a jury in an action of Bee Ratliff's administrator against the Louisville & Nashville Railroad Company, for the death of Ratliff, and the destruction of his truck, occurring on April 5, 1932, caused by a collision between the loaded truck which he was operating, and a freight train of the latter. The trial resulted in a verdict in favor of his estate for $7,000 for his death, and $500 for the destruction of the truck.

The railroad company is here insisting that Ratliff was contributorily negligent as a matter of law, and a peremptory instruction should have been given directing a verdict in its favor, but if it is not entitled to a reversal on this ground, his contributory negligence is so preponderantly established as to render the jury's verdict flagrantly against the evidence. Also, it complains of the given instructions and the action of the court in refusing offered instructions.

The basis of the estate of Ratliff's cause of action is, that "the whistle of the defendant's train was not sounded, or the bell rung, at a distance of at least fifty rods from the crossing * * * continuously or alternately" "until the engine reached the crossing"; that by reason thereof "the truck was struck" by the defendant's train at the crossing, instantly killing him.

The railroad company's defenses are a traverse and a plea of contributory negligence which is controverted by a reply. The railroad company's right to a reversal must be determined on the facts adduced.

The collision occurred about 3:40 p.m. "The decedent could have seen the train at any point between the crossing and the cut, 360 feet therefrom." Driving the truck, he approached the crossing from the south to the point from which he could see the train 360 feet from the crossing; "295 feet from the crossing, the decedent passed a standard crossing sign, erected by the State Highway Commission, and 175 feet from the crossing a curve sign indicating a sharp curve in the highway just after it crossed the railroad, as well as the standard crossing sign 12 feet from the crossing." The freight train came from the east on Potter's fork branch. "The engine was backed up, pushing the caboose ahead of it. Behind the engine was five cars of coal picked up at Haymond, about 1 1/4 to 1 1/2 miles of the crossing." The witnesses do not agree on the rate of speed at which either the train or the truck was traveling. The train had to stop for the derail to be thrown, "543 feet from the crossing"; "the switch connection being only about 750 feet from the crossing." "On the platform of the caboose, keeping a lookout," were Brakemen Smith and Blair. The engineer and firemen were at the place of the performance of their duties in the operation of the train. There were "two ways to ring the bell"; the fireman "with the rope," and "the engineer throwing on the air brake." The bell when set to ringing by the air brake did so automatically.

Bryant Holcomb, the fireman, testified that "the bell had been ringing all along at all these crossings up and down through there just like others do," and as the train approached the crossing, the engineer "had hold of the lever blowing the whistle, then I looked over at him, happened to look at him and he was standing with his back toward the outside of the cab and pulling down on the lever and pulled down stronger, standing with his back toward the truck and his hand come from the lever and threw on the emergency."

Hugh Strunk, a brakeman, testified that he was on the caboose next to the engine which was backing up. He "jerked the angle cock open, but the engineer had done got all the air"; "he had pulled the crossing signal whistle"; "two brakemen on the platform were blowing the back-up whistle"; "an air whistle."

Polkie Smith, a brakeman, "was on the caboose on the outside platform." He testified: "I was using a whistle, sounding the whistle, the air whistle." The engine whistle sounded on that occasion as it approached the crossing, and "blowed the regular road crossing signal." It did so, "back a piece from the crossing, and on down to the crossing."

Otis Mackey, the engineer, stated that "coming down there, there is a highway crossing there, and back about the usual distance, or proper distance, I started sounding the whistle and continued to sound it until * * * the only time I quit sounding it was when I turned it loose and grabbed the emergency and applied it." "I commenced sounding the whistle around twenty car lengths up the branch, before I got to the crossing"; the average length of a car was around forty feet. He claims "the bell was ringing after the accident happened"; he went back and "shut it off after the accident." "It was turned on before the accident happened"; it began ringing about the time the whistle began to blow. He used this language:

"I saw the truck come around the curve down onto the straight part of the highway and when he commenced getting a little closer here on the last sound of the whistle I pulled down a little louder thinking he was going to drive right up and stop and the caboose got the crossing about halfway...