Louisville & N. R. Co. v. Fisher

• Citation: 357 S.W.2d 683
• Parties: LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al., Appellants, v. Mildred M. FISHER, Executrix of the Estate of Marvin J. Fisher, Deceased, Appellee.
• Decision Date: 18 May 1962
• Court: United States State Supreme Court (Kentucky)

Page 683

357 S.W.2d 683

LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al., Appellants, v. Mildred M. FISHER, Executrix of the Estate of Marvin J.

Fisher, Deceased, Appellee.

Court of Appeals of Kentucky.

May 18, 1962.

Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, C. Hayden Edwards, W. L. Grubbs, Joseph L. Lenihan, James M. Terry, Louisville, for appellants.

Charles C. McConnell, Raymond C. Stephenson, Louisville, Melvin M. Belli, San Francisco, Cal., for appellee.

CLAY, Commissioner.

Marvin Fisher was killed when one of defendant's freight trains struck the automobile he was driving at a railroad crossing in Jefferson County. A jury awarded his estate $162,121.50. The defendant appeals, contending it was entitled to a directed verdict.

The accident happened in the afternoon. The decedent was proceeding north on a paved two-lane county-maintained public road. There are two tracks at the crossing. A 61-car freight train headed by two diesel engines approached from decedent's right (the east) on the far track at a speed of approximately 45 miles an hour. Decedent was alone in his automobile and no eyewitness observed the actual impact. The front engine struck the automobile squarely broadside and carried it some distance down the track.

The principal controversy developed at the trial and continued here is whether this crossing was extra-hazardous because of the alleged presence of tall weeds and/or other vegetation on the right of way. We do not find it necessary to decide that issue because in our opinion, whether or not the crossing was extra-hazardous in this respect, the decedent must be charged with contributory negligence as a matter of law. We will assume without deciding that because of the condition of the crossing and/or the acts of defendant's employees, the jury could properly have found the defendant negligent.

On the question of contributory negligence, the significant factors are (1) the physical conditions at the crossing, (2) the duties of the decedent, and (3) decedent's conduct in the operation of his automobile.

Certain physical conditions are not in dispute. The accident occurred at 4:00 p. m. on a cold, clear, winter day. The road on which Fisher was traveling was straight for several hundred feet, with a slight offset to the left and a rise in the roadway a short distance before the crossing is reached. It intersected the track line, which was straight for a distance of 1700 feet, at a 52-degree angle.

The crossing was marked by two railroad signs, one a standard county yellow circular sign, and the other a 'crossbuck' sign (one of the arms of which was missing). In addition, there was an official county STOP sign. It was the type of sign customarily used in the county to designate a boulevard stop and was located to the right of the roadway about 10 feet from the near track. Because of the slight bend of the road to the left just before reaching the crossing, a motorist traveling in the direction of the decedent (on the right side of the road) would run squarely over this sign unless he turned left to go over the crossing.

The only other significant physical characteristic of the crossing affected the visibility a motorist would have of an approaching train. This was violently in dispute, but on the issue under consideration we must accept plaintiff's portrayal. Plaintiff introduced six witnesses concerning this condition.

Mr. Roberts testified in substance that on the day of the accident there were 'massive' weeds on the right of way, eight feet tall, which blocked the motorist's view of the tracks to the right of the crossing; and that the front bumper of an automobile 'would almost be up to the ties before you could get any vision down the track'.

A Mrs. Link testified there were weeds and brush, also eight feet high, on the right of way and that the vision of a motorist was obstructed until 'he was almost on the railroad tracks'. She said that one could not see a train coming until 'practically on the tracks'. She could not estimate how far she could see (in feet) if she stopped at the STOP sign above referred to.

A Mrs. Davidson testified about weeds and high bushes, although she was not very specific and the time of her observations was not clear.

Three additional witnesses testified about various types of vegetation which more or less obstructed a motorist's view to the right when approaching from the direction Fisher approached. These three witnesses were the only ones for the plaintiff who attempted to describe the visibility from the point where the STOP sign was located. Mr. Miller testified that one would have to 'get sort of close to the track' to see an approaching train, and he said 'I would think so' when asked if one could get a good view to the east when 10 feet from the track. Officer Roehrs testified one could see approximately 140 feet to the right when the STOP sign was reached.

Officer Scannell, who investigated the accident and apparently made a careful study of the physical conditions, testified as follows:

'Q. How close would you have to get to that railroad track, that is, the actual rail itself, before you could see down the tracks?'

'A. Well, if you're driving a police car, we always had to get--your wheels almost had to be on your first track.'

In clarifying his testimony on this point he was asked on cross-examination the following questions and made the following answers:

'Q. Now, as you made your investigation there that afternoon on the scene of the accident, did you observe as to whether or not if Mr. Fisher came up here and made a stop at this stop sign that we talked about a moment ago, that red and white sign, he come up there and made a stop, did he or not have good visibility down this track to the east?

'A. Yes, Sir.

'Q. He did?

'A. (Witness nodding head in the affirmative).

'Q. No question about that, is there?

'A. If he's close to that stop sign, yes, Sir.'

On this appeal plaintiff has strenuously insisted that Fisher would have been unable to discover the approach of defendant's train if he had stopped at the STOP sign, and that he had no visibility to his right until his automobile actually reached the near rail. The evidence does not establish such facts. However, for the purpose of analyzing our problem, we will indulge an inference most favorable to the plaintiff. We will assume Fisher's visibility to the right was blocked at the point of the STOP sign. However, we will bear in mind that all of plaintiff's witnesses portrayed the obstruction as open and obvious. And it is clear from the evidence that the approaching train could have been observed at some indeterminate point between the sign and the near rail.

No contention is or could be made that Fisher was not aware of this crossing or did not observe the warning signs. Nor is it disputed that he was required to exercise due care under the circumstances for his own safety. Our question is whether the only proper conclusion to be drawn from the evidence by fair-minded men is that Fisher failed to exercise such care. (Obviously his negligence, if any, was a contributing proximate cause of the accident.) See Hunt's Admr. v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705. We now turn to the recognized duties of Fisher in the operation of his automobile.

Two extreme cases at opposite poles of the law furnish a starting point for an analysis of the due care required of a motorist at a railroad crossing. These are both older cases and the courts deciding them have since moderated their views. In Louisville & N. R. Co. v. Ratliff's Adm'r, 260 Ky. 380, 85 S.W.2d 1006, the motorist could have observed the approach of the train when he was 360 feet from the crossing. We held the plaintiff was not contributorily negligent as a matter of law. This decision appears unsound and certainly has not been followed in the more recent cases of Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493; Hunt's Adm'r v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705; Southern Ry. Co. v. Feldhaus, Ky., 261 S.W.2d 308; Louisville & N. R. Co. v. Hines, Ky., 302 S.W.2d 553; Louisville & N. R. Co. v. Troutman, Ky., 351 S.W.2d 516.

At the other extreme is Baltimore & O. R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645. In that opinion it was stated that if a motorist reaches a crossing and cannot ascertain whether a train is dangerously near, he must not only stop but get out of his vehicle if necessary for that purpose. This burdensome duty was repudiated in Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78L.Ed. 1149, 91 A.L.R. 1049. However, the doctrine is still followed in other jurisdictions. See 91 A.L.R. 1057. Unless we follow one of these extremes, our solution lies somewhere between them.

It must be borne in mind that in the foregoing cases there was no special sign or law requiring the motorist to stop. That added factor in this case we will find of controlling significance.

While no distinction appears to have been drawn in the cases between the duties of a motorist and those of a pedestrian in the exercise of due care at railroad crossings, our decisions involving the latter have consistently recognized a strict code of care. The pedesstrian is required to lood and listen right up to the time he actually crosses the railroad track, and if he fails to do so, he is guilty of contributory negligence as a matter of law. Louisville & N. R. Co. v. Mitchell's Adm'x 276 Ky. 671, 124 S.W.2d 1025; Louisville & N. R. Co. v. Brock's Adm'r, 281 Ky. 240, 135 S.W.2d 898; Louisville & Nashville R. Co. v. Mitchell's Adm'x, 285 Ky. 576, 148 S.W.2d 1048; Louisville & N. R. Co. v. Jackson, 286 Ky. 595, 151 S.W.2d 386; Louisville & N. R. Co. v. Lefevers' Adm'x, 288 Ky. 195, 155 S.W.2d 845; Louisville & N. R. Co. v. Hyde, Ky. 239 S.W.2d 936. In the latter case we said, page 938 S.W.:

'We have never adopted the widely...