Louisville & N.R. Co. v. Taylor

• Decision Date: 23 March 1956
• Citation: 290 S.W.2d 608
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE & NASHVILLE RAILROAD CO. et al., Appellants, v. Jeanette W. TAYLOR, Appellee.

Page 608

290 S.W.2d 608

LOUISVILLE & NASHVILLE RAILROAD CO. et al., Appellants, v. Jeanette W. TAYLOR, Appellee.

Court of Appeals of Kentucky.

March 23, 1956.

Rehearing Denied June 15, 1956.

H. G. Breetz, Louisville, C. S. Landrum, Lexington, J. P. Helm, Jr., Norris W. Reigler, Louisville, for appellants.

Morris & Garlove, Louisville, for appellee.

STANLEY, Commissioner.

The appellee, Mrs. Jeanette W. Taylor, recovered a judgment for $4,402.48 for personal injuries and special damages against the appellants, Louisville and Nashville Railroad Company and City of Louisville.

Frankfort Avenue is a heavily traveled east and west thoroughfare. A double track railroad crosses the avenue diagonally, forming an 'X'. The concrete sidewalks terminate at the railroad right of way but the asphalt or 'blacktop' street paving widens and extends over the street where the sidewalks would be were they projected across the railroad right of way. The tracks and the street paving are on an even surface. Between the two tracks, on the railroad right of way, just off the paved surface of the street, was a drainage ditch and catch basin or pit at the end of a small culvert through which the surface water flowed under the street. It side began at the edge of the asphalt paving and sloped to a depth of about two feet. There is no claim that the condition was unsafe in any respect except the proximity of the catch basin or pit to the walkway.

The accident occurred about half past five o'clock on a misty evening in December, 1953. One of the grounds of negligence relied upon is that the defendants had maintained this crossing without adequate lighting. While there are no street lights closer than about 150 feet, the crossing was reasonably lighted from nearby store windows and many passing automobiles. The plaintiff testified it was dark. She admitted automobile lights illuminated the street but not the sides or where the hole was.

The plaintiff was not a stranger to the situation. She says, however, that she had only walked along there on two previous occasions, both during daylight. The last time was about three weeks before the accident. She knew the sidewalks ended at the right of way but had not paid any attention to the conditions off the paving. On this occasion she was walking along 'normally' looking ahead and not looking down to see where she put her foot. She stepped off the paving into the depression and broke her ankle and suffered other injury.

We perceive no negligence on the part of either defendant.

The railroad company paved and maintained the street where it crossed the railroad right of way, presumably upon plans approved by the city. KRS 277.060(2, 3). As stated, the drainage pit was on the railroad right of way between the tracks, although its rim was at the edge of the asphalt paving. The company had spread the paving 18 inches beyond the street right of way onto its own right of way. The company, in substitution of the city, was required to construct and maintain the street in such a way as to make it reasonably safe for travelers. This, of course, included pedestrians exercising ordinary care for their own safety. Louisville & N. R. Co. v. Jackson's Adm'r, 243 Ky. 59, 47 S.W.2d 941; Chesapeake & O. R. Co. v. Pope, 296 Ky. 254, 176 S.W.2d 876. The condition or plan was not dangerous or unsafe.

We agree with the appellee that a pedestrian has the right to travel upon any part of a street and has the right to assume the way is reasonably safe where pedestrians may be expected to go. City of Glasgow v. Gillenwaters, 113 Ky. 140, 67 S.W. 381; City of Hazard v. Scruggs, 307 Ky. 516, 211 S.W.2d 683. The case of Savage v. City of Louisville Gas & Electric Co., Ky., 267 S.W.2d 948, relied upon by the appellee, confirms this principle but it is distinguishable upon the facts. In that case the company had dug and left unguarded a deep hold within the limits of a sidewalk area just outside the plaintiff's yard gate. The woman who fell into the hole had the right to walk there without anticipating or expecting such a dangerous pitfall. That was a temporary, unusual condition which had been created a short while before the accident and was unknown to her. In this case the pedestrian inadvertently veered from her course and left a safe place where she was expected to walk and stepped into a reasonable and apparently necesesary, permanent drainage catch basin between the railroad tracks. It was like stepping off the curb of a sidewalk into the street gutter.

In McNeal v. City of Louisville, 287 Ky. 83, 151 S.W.2d 749, a woman in a marked crosswalk at a street intersection caught the heel of her shoe in a grating of a catch basin and fell. We held the mere fact that the plaintiff had caught her...