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

• Decision Date: 11 October 1901
• Citation: 64 S.W. 667,111 Ky. 729
• Parties: LOUISVILLE & N. R. CO. v. BREEDEN'S ADM'X. [1]
• Court: Kentucky Court of Appeals

64 S.W. 667

111 Ky. 729

LOUISVILLE & N. R. CO. v. BREEDEN'S ADM'X. ^[1]

Court of Appeals of Kentucky.

October 11, 1901

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by the administratrix of Rasmus Breeden against the Louisville & Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Reversed.

Ira Julian and Edward W. Hines, for appellant.

B. G Williams, for appellee.

HOBSON J.

On February 24, 1899, Rasmus Breeden, appellee's intestate was killed by collision with a train of the Chesapeake & Ohio Railway Company at a public crossing near Ducker's, in Woodford county, on the track of the appellant, the Louisville & Nashville Railroad Company, and this action was brought to recover damages for his death. There were a verdict and judgment in favor of the plaintiff for $5,000 and the defendant appeals.

The proof shows that the intestate and another man were riding in a buggy on the turnpike, leading a horse behind the buggy. The pike crossed the railroad at an acute angle. The view of the track to the east was obstructed until they got substantially to it. It was a cold morning, and there was some snow on the ground. The railroad approached the crossing in a curve, through a cut, and the train could not be seen by the traveler on the pike until it rounded the curve, which was between 200 and 300 feet from the crossing. Just as the buggy reached the track, it was struck by the train, hurling the occupants something like a hundred feet, and killing them both. The proof on behalf of the plaintiff tended to show that by reason of the obstruction the sound of trains approaching the crossing was deadened, and that the view was obstructed by not only a hedge on the turnpike and some buildings and trees standing on it, but also by a hedge and fence running along the railroad and about 18 or 19 feet from the track. The hedge along the railroad had been trimmed shortly before the collision, and, it would seem, in its condition at that time was not a serious obstruction. But the crossing was exceptionally dangerous, for both sight and hearing were obstructed. The train was running, perhaps, 35 or 40 miles an hour, and, according to the proof made by the plaintiff from a number of persons who were eyewitnesses and near by, gave no signal at all of its approach, until it was near the mouth of the cut, when the whistle was blown and the air brakes applied with much force, but too late to prevent the collision. The train was not on time, and the proof is conflicting as to how much it was late. The proof for the defendant was that the signals of the approaching train were given, and that those in charge of the train did not see the persons on the crossing or the buggy in which they were riding until they got within 50 yards of them. The evidence showed that the railroad was built about the year 1835, and was then run as a horse line. The county road, on which the turnpike was afterwards built, was in existence when the railroad was located. The court instructed the jury, among other things, as follows: "(1) If the jury believe from the evidence that the crossing and immediate approaches on defendant's right of way, about one mile west of Ducker's Station, in Woodford county, Ky. where said Breeden was killed, was at the time, by reason of negligence and carelessness of the defendant, Louisville & Nashville Railroad Company, in a dangerous and unsafe condition, by reason of fences and other obstructions on the defendant's right of way, at and immediately contiguous to, and in close proximity to, said crossing, as to imperil the lives of travelers on said highway who were using ordinary care for their own safety, and that the defendant Louisville & Nashville Railroad Company, knew, or, by the exercise of ordinary care, could have known of its dangerous and unsafe condition, and that Rasmus Breeden while using ordinary care for his own safety in attempting to cross said railway, was struck and killed by an engine and train of cars running on said track under contract with the said Louisville & Nashville Railroad Company, then said Louisville & Nashville Railroad Company is liable; and the jury ought to find for the plaintiff such sum in damages as they may believe will reasonably compensate the estate of Rasmus Breeden for the loss, by the destruction of his life, of his power to earn money, not to exceed $25,000, the amount claimed in the petition. But, before the jury can find for the plaintiff, they must believe from the evidence that the dangerous condition of the crossing and its immediate approaches was the proximate cause of the injury. (2) If the jury believe from the evidence that the crossing at which Rasmus Breeden lost his life was formed by the Louisville & Nashville Railroad Company building its railroad track across the county road where the turnpike now runs, and if the jury believe that at said time that said road was a public county road, then it was the duty of the said railroad company to so construct its crossing, and its immediate approaches, in such manner as to enable a reasonably prudent man, exercising ordinary care, to cross same with reasonable safety; and, if the jury believe that the said crossing and its immediate approaches were so unsafe as to imperil the lives of persons traveling said road, and who were using ordinary care, on account of the condition of the crossing and its approaches, or on account of hedges, fences, and other obstructions on its right of way, which prevented the decedent from seeing or hearing the approach of the train while in the exercise of his senses of sight and hearing, then the jury ought to find for the plaintiff as defined in instruction No. 1. But, if the jury believe from the evidence that the said county road where the turnpike now runs was located after the time of the building of the railway, then it was the duty of the authorities locating and building said road over said railway to have avoided the dangers, if any, to the traveling public, by reason of said embankment or other obstructions on defendant's right of way, and the defendant is not liable therefor. This exemption, however, does not relieve the said defendant of the duty of keeping its immediate crossing and its approaches thereto on its right of way in reasonably safe condition for travelers to pass over said railway; and, if the jury believe that the said crossing and the immediate approaches to same were in reasonably safe condition at the time of the accident, and said railway was constructed prior to the time of the construction of said county road, the defendant is not liable, and the jury ought to so find. (3) The jury are instructed that the defendant, the Louisville & Nashville Railroad Company, is not responsible for any injury which may result solely from the operation of the Chesapeake & Ohio trains over the railroad in question; and that, if they believe from the evidence that the injury and death of plaintiff's intestate was directly and proximately caused by the mode in which the Chesapeake & Ohio train which struck him was being run, or by the failure of those in charge of said train to give reasonable and timely signal or warning of its approach, then they ought to find for defendant. (4) If the jury find from the evidence that, considering the nature and condition of the crossing in question, and its surroundings, those in charge of the train which killed Breeden gave such signal or warning of its approach as was reasonably sufficient to apprise thereof a traveler in the vicinity of the crossing, who was himself in the exercise of ordinary care and prudence, they should find for the defendant. (5) Although the jury may believe from the evidence that the crossing where Breeden was killed was a dangerous crossing on account of the cut and turnpike surroundings, yet, if they further believe that the collision and killing could have and would have been avoided by the exercise of reasonable care and proper precaution on the part of the employés of the Chesapeake & Ohio Railway Company in the operation of the train of cars that struck the buggy and killed Breeden, then they should find for the defendant, unless they shall further believe from the evidence that the Louisville & Nashville Railroad Company were negligent and careless in the construction of said crossing and its approaches, or by permitting obstructions on its right of way, and which negligence and carelessness was the direct and proximate cause of the accident; in which case they ought to find for the plaintiff." The rule as to the liability of the railroad company for allowing obstructions to the sight and hearing of the traveler to exist near highway crossings is thus stated in 2 Thomp. Neg. § 1507: "The true view seems to be that the railway company ought not to be held blameworthy for not removing such obstructions to sight and hearing as may be reasonably necessary to the exercise of its franchises,--such as necessary buildings on its right of way, or the necessary standing of cars upon its side tracks near the crossings of public streets or roads; but that to allow obstructions to vision and hearing of a traveler to come or to remain upon its right of way, which are not necessary to the exercise of its franchises, which can be removed at no great expense, --such as weeds, bushes, hedges, trees, embankments, and the like,--is negligence as matter of law. But it cannot be affirmed with entire confidence that such is the law." After taking up and discussing a number of cases he concludes the subject with these words: "From the foregoing decisions we may extract the conclusion that for a railway company unnecessarily...