Louisville & N.R. Co. v. Clark's Adm'r

• Decision Date: 07 February 1899
• Citation: 49 S.W. 323,105 Ky. 571
• Parties: LOUISVILLE & N. R. CO. v. CLARK'S ADM'R. [1]
• Court: Kentucky Court of Appeals

49 S.W. 323

105 Ky. 571

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

Court of Appeals of Kentucky.

February 7, 1899

Appeal from circuit court, Hardin county.

"To be officially reported."

Action by William J. Clark's administrator against the Louisville & Nashville Railroad Company to recover damages for the death of plaintiffs intestate. Judgment for plaintiff, and defendant appeals. Reversed.

W. H Marriott, H. W. Bruce, and Edward W. Hines, for appellant.

W. S Pryor, S. M. Payton, and W. H. Holt, for appellee.

BURNAM J.

This is an appeal from a judgment in favor of appellee, as administrator of W. J. Clark, against appellant, for $10,000 in damages for the loss of intestate's life. The petition, in substance, alleges that decedent was killed by one of defendant's south-bound freight trains at the point where a public road, known as the "Litchfield Road," in Hardin county, crosses defendant's track. It is charged that this crossing is specially dangerous by reason of "an embankment and other obstructions" standing on defendant's right of way, which prevented plaintiff's intestate from observing the approach of the train before he attempted to cross the track, and that defendant's agents failed to give warning of the approach thereof, either by ringing of the bell or blowing of the whistle, as required by law. All the material allegations of the petition as amended were denied by the answer, and the defendant charged that plaintiff's intestate was guilty of such contributory negligence in causing the accident which led to his death as prevents recovery.

The testimony for appellee, as to the failure of appellant's servants to blow the whistle or ring the bell as they approached this crossing, is confined to witnesses who, at the time of the killing, were located at a considerable distance from the actual place of the accident; and they all testify, in substance, that they did not hear any bell rung or whistle sounded as the train approached the crossing their attention being first directed thereto after it had passed beyond the crossing by the signals to stop the train and back up. And there is a good deal of testimony to the effect that the crossing was an unusually dangerous one, from the fact that the approach of the train was to some extent obscured by a long cut north of the crossing, and by the further fact that in the original construction of the road a part of the earth excavated from the cut had been thrown upon the right of way adjacent to the excavation and allowed to remain there; and there is some testimony to the effect that at the time of the injury this embankment was covered with high weeds, bushes, and briers, which materially obstructed the view of the approaching trains from travelers upon the highway, and that the corn growing upon the adjacent land also aided in obstructing the view of such travelers. The evidence tends to show that the cut and embankment together was about 5 feet high 200 feet north of the crossing, and gradually slopes to grade as it is approached, being only 2 feet 3 inches 50 feet away. No witness was introduced for appellee who saw the accident, or saw the deceased as he approached the crossing, while the engineer, fireman, and brakeman in charge of the train that killed him all testify that the usual signals were given for the crossing, by blowing the whistle and ringing the bell; and there was also testimony for appellant that there were no weeds, bushes, or other obstructions on the right of way sufficient to prevent travelers from seeing an approaching train; that the main obstruction was the corn, heretofore referred to, and the cut through which the train passed. Two of these witnesses testified that they had made experiments to ascertain whether a person, sitting in an ordinary road wagon, could see a train coming from the north before his team got on the track; and they found, when the tongue of the wagon got within 16 feet of the nearest rail, he could see the smokestack of an approaching locomotive for more than 500 feet north of the crossing, and that when the head of his horses got within 6 feet of the track he could see for more than 1,000 feet down the track; and this testimony is corroborated by a number of other witnesses. Deceased was a tenant on a farm about five miles from Elizabethtown, and in making the trip from his home to town he habitually traveled the Litchfield road. On the day of the accident which resulted in his death, he had been to town to deliver a load of wheat, and had started back for another load, and was driving an empty wagon drawn by two mules. Before he reached the crossing he was compelled, on account of a rain storm which came up suddenly, to stop in a barn on the side of the road. Frank Brown--who was also driving a wagon in the same direction, and who sought shelter from the rain in another barn further from the railroad than that in which Clark took shelter--testifies that deceased "passed him in a trot before he [Brown] stopped in out of the rain"; while one Thomas Weatherly, who is the only witness who testifies to seeing Clark after he left his place of shelter after the rain, testifies that when he last saw him he "was within fifty feet of the railroad crossing, driving at a pretty rapid rate." The fireman on appellant's train testifies that he first discovered decedent crossing the railroad track "at a run when the train was within thirty to sixty feet of the crossing." There is no evidence that the collision could have been averted by any act of the agents of the defendant.

Under this state of proof, appellant's counsel moved for a peremptory instruction, which the court refused to give, and this is the first ground relied on for reversal. It is the general rule that questions of fact are to be submitted to the jury, and this includes, not only cases where the facts are in dispute, but also those where the question is as to the inference to be drawn from such facts after they have been determined. In this case plaintiff's intestate is not here to testify, and there is an absence of evidence as to the care exercised by him in attempting to cross defendant's track; but it cannot be presumed that deceased recklessly or carelessly imperiled his own life or entered upon the track knowing of the train's approach. "If the presumption of negligence arises from the mere fact that deceased was killed on the track at a place where he had a light to be, it must necessarily defeat recovery in all such cases, unless it appear that those in charge of the train, after discovering the dangerous condition of the parties injured, could, by the exercise of ordinary care, have avoided inflicting the injury." See Railroad Co. v. Goetz's Adm'x, 79 Ky. 447. This doctrine might apply if the party injured was on the track where he had a right to be, but has no application to a case like this, where the accident occurred at the crossing of a public highway.

Appellant asked the court to give the following instruction, which was refused: "If the jury believe from the evidence that plaintiff's intestate saw or heard, or could by the exercise of ordinary care have seen or heard, the approaching train, before he was upon the track, it was want of ordinary care upon his part to go upon the...