Louisville & N. R. Co. v. Hines

• Decision Date: 30 November 1956
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Geraldine F. HINES, Administratrix of the Estate of Hugh Gates Hines, Deceased, Appellee.

Page 553

302 S.W.2d 553

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Geraldine F. HINES, Administratrix of the Estate of Hugh Gates Hines, Deceased, Appellee.

Court of Appeals of Kentucky.

Nov. 30, 1956.

Rehearing Denied June 21, 1957.

Coleman, Harlan & Orendorf, Bowling Green, C. S. Landrum, Lexington, for appellant.

Duncan & Huddleston, Bowling Green, for appellee.

STEWART, Judge.

This is an appeal from a judgment of the Warren Circuit Court entered on the verdict of a jury awarding appellee-plaintiff, Geraldine F. Hines, administratrix of the estate of Hugh Gates Hines, the sum of $18,000 for damages sustained by the estate, for loss of the truck and for funeral expenses incurred when decedent was struck and killed by a train of appellant-defendant, Louisville & Nashville Railroad Company. Reversal is urged upon the ground that the lower court erred because it overruled appellant's motion to peremptorily instruct the jury to return a verdict for it, and, having so erred, it should have sustained appellant's motion for judgment in its favor notwithstanding the verdict.

The accident occurred at a railroad crossing a few feet outside the city limits on the south side of Bowling Green. On August 30, 1954, at about 5:50 a. m., decedent was driving his pickup truck on Robinson Lane, which extends 822 feet in length between the old Russellville Road and the new Russellville Road. The latter road is designated as U. S. Highway 68. Robinson Lane is traversed at a 90 degree angle by the double tracks of appellant, the center line of the northbound track to the east being located approximately 550 feet west of the old Russellville Road and 272 feet east of the new Russellville Road. It was a clear day and visibility was good. Decedent approached the crossing from the old Russellville Road side or from the east and had an unobstructed view of the crossing for the entire 550 feet toward the west. The crossing is elevated in order to afford travel up and over a fill 3 1/4 to 3 1/2 feet higher than the surface of the surrounding land. The diesel engine and the coaches of the train it was pulling were 14 to 15 feet higher than the top of the rails of the railroad track. The tracks extend in a straight line north for several thousand feet.

H. E. Pilkenton, the fireman on the engine, testified that when decedent's truck was 150 to 200 feet from the crossing, and when the train was 400 to 450 feet therefrom and approaching from the north, he first observed decedent's truck, and, noticing that the speed of the truck was slackening, expected it to stop. When the truck was within 50 feet of the railroad tracks, and starting up the incline, he sounded the alarm whistle on the engine. The bell on the engine, which could be set to work automatically, was ringing and had been ringing continuously from the time the train had pulled out of the Bowling Green station, according to the fireman and the engineer. However, Mrs. Elmer Payne and Mrs. Lonnie Robinson, who testified on behalf of appellee, declared positively that no whistle was sounded and they also stated they did not hear any bell ring. Two other witnesses of appellee's testified they neither heard and bell sound nor a whistle blow.

The fireman also testified that decedent was looking straight ahead and did not glance to the right or left. Nor did he even turn his head when the alarm whistle sounded. He drove his truck up the incline to the northbound track, his right hand on the steering wheel and his left arm in the window of the car door, crossed that track and entered onto the southbound track immediately in front of the diesel engine. Decedent's truck was traveling at a 'normal rate' of speed and the train was running at about 45 to 50 miles per hour. Decedent was familiar with the lane and crossing, having traversed them practically every day.

I. N. McElory owns the property bordering on the north side of Robinson Lane and extending from the old Russellville Road to the east line of the railroad right of way. His residence is on the front part of this lot, facing the old Russellville Road. Some distance back of the house is his barn, and McElroy has a riding ring between his barn and the above right of way. Just after passing the McElroy barn, it is 225 feet to the northbound railroad track. It is undisputed that the back part of the McElroy place was at the time devoid of all weeds, shrubbery, trees and the like. On the land along this stretch there was nothing that could have prevented decedent from seeing the train as he approached the railroad. The only possible obstruction which then could exist between the barn and the tracks would be a row of bushes which apparently were growing along a little road beyond McElroy's fence and parallel to the east side of the railroad right of way. Appellee contends that these bushes partially concealed the train or, at least, provided 'ruptive markings' which were 'highly deceptive' and tended to camouflage the tracks.

Appellee introduced no witnesses who testified that the bushes served to conceal anything moving on appellant's tracks. She did however present some photographs, made shortly after the accident, which are strongly relied upon to maintain her contention that decedent was unable to obtain an unimpeded view of the oncoming train beyond these bushes. Appellee's 'Exhibit G' is a picture which reveals the bushes growing beside the little road and apparently they are very thick along it. However, this picture was taken somewhat closeup and at an angle looking directly down the row of bushes, and it cannot be fairly claimed that this is a good representation of the denseness of this vegetation. 'Exhibit I' is a picture which was photographed just a few feet east of 'Exhibit G', and the photographer, in making it, admits he was told to aim his camera at the bushes. The same criticism we have noted to the picture representing 'Exhibit G' can be made as to the one introduced as 'Exhibit I.' It is significant that appellee offered no picture showing the view of the track from farther up the road. Furthermore, since the pictures were taken so as to emphasize a focus upon the foliage, they tend to magnify the denseness and the height of the bushes, with the result that this makes them appear to obstruct the view of the track.

Appellant produced some pictures taken about the same time by the same photographer from farther up the road and these clearly disclose that the train would have been seen had deceased resorted to the ordinary precaution of looking to his right, that is, in the direction of the approaching train. 'Exhibit 1' and 'Exhibit 2' of appellant's are photographic views very...