Louisville & N.R. Co. v. Mitchell's Adm'X

• Decision Date: 03 February 1939
• Citation: 276 Ky. 671
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & N.R. Co. v. Mitchell's Adm'x.

276 Ky. 671

Louisville & N.R. Co. v. Mitchell's Adm'x.

Court of Appeals of Kentucky.

February 3, 1939.

1. Witnesses. — That a witness, in reporting death of plaintiff's intestate to plaintiff, failed to relate remarks of deceased about hurrying to beat train across a crossing did not impeach testimony of such witness in a death action against the railroad.

2. Railroads. — Whether deceased was guilty of contributory negligence as a matter of law in a crossing accident depended upon whether men of ordinary judgment might differ as to whether deceased was killed because of own negligence in stepping into path of train or because of negligence of those in charge of train.

3. Railroads. — It is not the duty of one approaching a public crossing to stop, look and listen for the train before crossing the tracks; the traveler being entitled to rely upon the train giving statutory signals at a public crossing (Ky. Stats., sec. 786).

4. Railroads. — When one knows a train is approaching and attempts

to beat it to the crossing, the railroad owes such person no duty to give signals of approach (Ky. Stats., sec. 786).

5. Railroads. — When a person is struck in attempting to cross a public crossing in front of a train known to be approaching, the negligence of such person causes or so contributes to his injuries that he cannot rely upon failure of railroad to give statutory signals, since it would constitute antecedent negligence by railroad (Ky. Stats., sec. 786).

6. Negligence. — A person guilty of contributory negligence cannot base his right of action upon the antecedent acts of negligence of the one causing the injury.

7. Railroads. — Evidence that pedestrian stepped in front of approaching train, that he had remarked he would have to get across a crossing before train arrived, and that others in no more favorable positions knew of approaching train, barred recovery in death action against railroad, since antecedent negligence, if any, of railroad in operating train was not proximate cause of death (Ky. Stats., sec. 786).

Appeal from Whitley Circuit Court.

ASHBY M. WARREN, J. MILLER WHITE and TYE, SILER, GILLIS & SILER for appellant.

C.B. UPTON and R.L. POPE for appellee.

OPINION OF THE COURT BY SIMS, COMMISSIONER.

Reversing.

G.S. Mitchell, a man about 58 years of age, physically and mentally sound, who some 12 or 15 years ago worked for the appellant as telegraph operator at Woodbine, Kentucky, was killed by a fast passenger train of appellant's when he stepped directly in front of it while attempting to cross the railroad tracks about 4:30 P.M., January 20, 1937, at a public grade crossing located near the depot in the village of Woodbine. His widow qualified as his administratrix and brought this action in the Whitley Circuit Court, alleging negligence in the operation of the train, which suit resulted in a verdict for her in the sum of $4,000, upon which judgment was entered. The main ground upon which appellant relies for reversal of this judgment is the refusal of the trial court to peremptorily instruct the jury to find a verdict for it because appellee's decedent was guilty of contributory negligence as a matter of law in stepping directly in front of the approaching train.

Appellee alleged in her petition the crossing where the accident occurred was unusually dangerous due to a curve just south thereof, which, with a toilet six feet by twelve feet located near the tracks, obstructed the view of one approaching the crossing from the west, as was decedent, and that this was a crossing over which many people traveled every day; that the appellant was operating its train at an excessive rate of speed; that no lookout was maintained and no signals were given as the train approached the crossing on this occasion. Appellant's answer contains a general denial and an affirmative plea of contributory negligence which latter plea appellee traversed in her reply.

Woodbine is an unincorporated village with a population of from 500 to 1,000 people residing in the community, and various witnesses estimated about this number of persons passed over this crossing each 24 hour period. There were three tracks at this crossing, the west track is the main line upon which the train was running and just east of it is the passing track, and east of that is the storage track. The curve immediately south of the crossing is not sharp, because from there one can see south down the track for 1087 feet. There is much testimony in the record about signals being given at what is referred to as the "brick yard crossing" and at the "whistle post," therefore it may help to locate these points in reference to where the accident happened. The brick yard crossing is 1,922 feet south of the crossing where the accident occurred, and the whistle post is 517 feet south of the crossing where the accident occurred. The train which figured in the accident was a passenger train carrying 15 coaches proceeding north at a speed estimated by the various witnesses at anywhere from 50 to 70 miles per hour, and it was running 15 minutes late. The uncontradicted testimony is the train blew for the brick yard crossing, and just south of the whistle post it blew for the board at Woodbine. "Blowing for the board" means the train whistles for the operator to signal it by a light whether the track is clear and when the operator changes the light and gives the train the right of way, it answers the signal light with its whistle. The uncontradicted testimony is that the train blew two long blasts, a short, and a long blast of its whistle for the brick yard crossing, and in blowing for the board it blew four long blasts and when the board was given it, the train answered with two short blasts of its whistle. Therefore, throughout this opinion when we say the train blew for the brick yard crossing, we mean it gave two long blasts, a short and a long blast of its whistle; and when we say it blew for the board we mean it gave four long blasts of its whistle and when the board was given it the train answered immediately by two short blasts of its whistle. Unless otherwise designated, when we use "crossing" we have reference to the railroad crossing at Woodbine, very near the depot, where this fatal accident happened.

The testimony for appellee is her decedent left the automobile of Lewis Durham which was parked on the side of the highway about 50 feet from the crossing, where decedent was joking with Durham, or some persons in his car, for a short time, and then proceeded to walk towards the crossing. Just as he came within a very few feet of the west track (the witnesses put it at distances varying from two to six feet), he stopped and stooped down as if to tie his shoe and when he got up he, without turning, or raising his head, stepped in front of the train which was not over 50 feet from him, traveling from 50 to 70 miles per hour. The 13 witnesses testifying for the appellee as to the manner in which the accident happened were located at various distances and in various positions from the crossing and each and every one of them testify they knew the train was approaching. Some heard the noise, or roar, of the train, some saw it approaching the station, and some heard it whistle for the brick yard crossing, or the whistle post, or both the brick yard crossing and the whistle post, but they all knew the train was approaching Woodbine.

Without...