Louisville & N.R. Co. v. Cummins' Adm'r

• Decision Date: 18 June 1901
• Parties: LOUISVILLE & N. R. CO. v. CUMMINS' ADM'R. [1]
• Court: Kentucky Court of Appeals

63 S.W. 594

111 Ky. 333

LOUISVILLE & N. R. CO. v. CUMMINS' ADM'R. ^[1]

Court of Appeals of Kentucky.

June 18, 1901

Appeal from circuit court, Todd county.

"To be officially reported."

Action by the administrator of E. R. Cummins against the Louisville & Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Reversed.

Perkins & Trimble and Edward W. Hines, for appellant.

S Walton Forgy and Joseph H. Lewis, for appellee.

HOBSON J.

This action was instituted by appellee, as the administrator of his son, E. R. Cummins, to recover for the death of his intestate on the ground that he had lost his life by reason of the negligence of appellant. The proof shows that the intestate was struck by a train and killed at Gutheris, on Christmas night, about 10 o'clock, in the year 1897. The train which struck him was a passenger train coming from the south on the main track of the railroad. It stopped at the coal chute for coal about 600 yards from the station. Between the coal chute and the station was a street crossing. The view of the approaching train was obstructed at this crossing by a freight depot on one side of the track and a mill on the other. There was also a side track on either side of the main track, and on these some cars were standing. The intestate was looking for a place to stay all night, and started from a saloon on the west side of the track to a hotel on the east side of the track, and, according to the evidence for appellee, as he was passing along the street, going from the saloon over to the hotel, just as he reached the railroad was struck by the train and killed. The evidence for the appellant tended to show that the deceased when he reached the railroad, instead of passing over the track, turned south, and walked along it, and was thus struck a little south of the crossing, and dragged back on the crossing, where his body was found. This proof also tended to show that the deceased was quite drunk; that the train was running about eight miles an hour; that the track was straight, and the light of the headlight upon the crossing that the bell of the train was ringing; and that, after the intestate's peril was discovered, the alarm signal was given, and the brakes applied, but he was too close for the train to be checked before it struck him. The proof also shows that the crossing was especially dangerous by reason of the view being obstructed, and that it was much used by the public, being in a frequented part of the town. On these facts the court instructed the jury as follows: (1) "It was the duty of defendant, on the occasion in question, in approaching the crossing where the decedent, Cummins, was killed, to slacken the speed of its train, keep a lookout for persons upon or crossing its track, give reasonable signal or warning of the train's approach by sounding the bell or whistle, and exercise the highest degree of care to avoid injury to persons at said crossing which was consistent with a prudent management of defendant's road and trains. If the location of said crossing, the amount of public travel thereon, and the existence and proximity of permanent buildings obstructed the view of the railroad and the view and hearing of approaching trains, rendered the crossing unusually dangerous to a large number of the traveling public, then it was the duty of defendant to keep a watchman, or adopt and use some other reasonably safe mode of warning travelers of approaching trains: and if the jury believe from the evidence that on the occasion under investigation the defendant, its agents or servants operating trains, failed to use ordinary care to warn the decedent, Cummins, of the approach of its train, and that by the negligence of the defendant, or its said agents or servants, the said Cummins was struck and killed by defendant's engine or cars, then the jury should find for plaintiff such compensatory damages, if any, as he sustained as the direct and natural result of said negligence and killing, not exceeding $15,000, the amount claimed, unless they should further believe from the evidence that in receiving the injury Cummins was himself guilty of negligence to such an extent that, but for his own negligence, the accident would not have happened." (2) "As used in the instructions, 'compensatory damages' means such a sum of money as will fairly and reasonably compensate plaintiff for the destruction of his intestate Cummins' power to labor and earn money." (3) "'Ordinary care' means such care as ordinarily prudent persons would use under similar circumstances involving their own interests. 'Negligence' is the absence of ordinary care." These are all the instructions given on the trial, except two relating to contributory negligence.

In Railway Co. v. Barbour, 51 S.W. 159, and Railway Co v. Gunter, 56 S.W. 527, this court considered fully the law applicable to railroad crossings, and under the principles announced in these cases the foregoing instructions did not properly...