Louisville & N.R. Co. v. Smith

• Decision Date: 27 October 1899
• Parties: LOUISVILLE & N. R. CO. v. SMITH. [1]
• Court: Kentucky Court of Appeals

53 S.W. 269

107 Ky. 178

LOUISVILLE & N. R. CO. v. SMITH. ^[1]

Court of Appeals of Kentucky.

October 27, 1899

Appeal from circuit court, Jefferson county, common pleas division.

"To be officially reported."

Action by Roger M. Smith against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Lyttleton Cooke and Edward W. Hines, for appellant.

Pryor O'Neal & Pryor and Humphrey & Davie, for appellees.

WHITE J.

This is an action for damages for personal injury. Appellee, Smith together with his wife and child, were driving along the highway just east of St. Matthews, in Jefferson county, going in the direction of Louisville. This highway, the Westport turnpike, runs along and parallel with appellant's railroad for a considerable distance east of St. Matthews. Near where appellee was injured there are several crossings of roads over the railroad connecting with the Westport turnpike. The turnpike itself some distance east crosses the railroad. The negligence alleged is that, while appellee was driving a team of gentle and ordinarily safe horses along this turnpike, appellant's passenger train going east and meeting appellee, blew the engine whistle unnecessarily and unnecessarily loud, and unusually loud and long, and carelessly and negligently, so that the noise frightened the horses of appellee, and they became unmanageable, and ran away, and injured appellee. The answer denied negligence, and alleged that the whistle sounded was the usual signal required by statute to be given when approaching a public crossing, which the train was then doing; denied that the engineer in charge of the engine saw appellee, or saw that his team was frightened or restless; and pleaded that the accident was caused solely and wholly by the negligence of appellee. The case was tried before a jury, and resulted in a verdict and judgment for appellee in the sum of $2,500; hence this appeal.

The reasons for new trial complain that the court erred in refusing a peremptory instruction, and in refusing certain instructions asked by appellant, and in giving the instructions to the jury (these are numbered 1, 2, 3, 4, and 5), and of errors in the admission and rejection of evidence prejudicial to the appellant. Instruction No. 1 reads "The court instructs the jury that the law made it the duty of the defendant's employés in charge of the engine mentioned in the petition, when not less than within 50 rods, or 825 feet, of the crossing of the railroad and the Westport turnpike, to give notice of the approach of the engine and train thereto by blowing the whistle or ringing the bell continuously or alternatively until the crossing was reached; and if the jury shall believe from the evidence that the signals from the whistle complained of by the plaintiff were the usual and customary signals for the said crossing, given in the usual and customary manner, and that the defendant's said empoyés did not see, and could not have known by the exercise of ordinary care, that continued whistling would cause plaintiff to lose control of his horses, and would cause them to run away, then the law is for the defendant, and they should so find." Instruction No. 2 is the converse of No. 1. In...