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

• Decision Date: 30 October 1923
• Parties: LOUISVILLE & N. R. CO. v. HOWSER'S ADM'R. (TWO CASES).
• Court: Kentucky Court of Appeals

257 S.W. 1010

201 Ky. 548

LOUISVILLE & N. R. CO. v. HOWSER'S ADM'R. (TWO CASES).

Court of Appeals of Kentucky.

October 30, 1923

Rehearing Denied, with Modifications, Feb. 19, 1924.

Appeals from Circuit Court, Shelby County.

Action by Harris Howser's administrator against the Louisville &amp Nashville Railroad Company, with subsequent action by the defendant against the plaintiff for a new trial. Judgment against the Railroad Company in both cases, and it appeals. Affirmed.

Woodward & Warfield and B. D. Warfield, all of Louisville, and Willis Todd & Willis, of Shelbyville, for appellant.

Pickett Barrickman & Kaltenbacher, of Shelbyville, for appellee.

SAMPSON C.J.

While driving an automobile along the public highway which crosses the tracks of appellant, Louisville & Nashville Railroad Company, at grade, at what is known as Keene's crossing, on August 26, 1921, the deceased, Harris Howser, and one Bruce were struck by an engine of one of the trains of appellant company and almost instantly killed. Action No. 60 was commenced by the administrator of Howser in the Shelby circuit court on September 12, 1921, to recover $25,000 in damages for the destruction of the power of his decedent to earn money. A verdict for $10,000 having been returned in favor of Howser's administrator, upon which judgment was entered, the railroad company appeals, asking a reversal upon five alleged grounds, stated by its counsel as follows:

"(1) The court erred in excluding evidence that decedent and his companion had drank 'moonshine' whisky the morning of the accident, and in directing the jury to disregard such evidence, which was competent and material on the issue as to whether decedent was contributorily negligent at the time of the accident.

(2) The court erred in excluding other competent evidence offered by appellant, and in admitting incompetent evidence for appellee.

(3) The petition does not aver, and the evidence does not show, that the crossing at which decedent was killed was in a thickly settled community, or was used by many persons, such as to require appellant to take additional precautions thereat, and the court erred in authorizing the jury, under the instructions, to find against appellant because of its failure to take precautions additional to those of signaling the approach of the train by whistle and bell, there being neither allegata nor probata to justify such instruction.

(4) The court erred in sustaining appellee's demurrer to appellant's petition in its suit for new trial, and in dismissing the petition.

(5) The court gave the jury erroneous instructions, and erred in refusing some of those offered by appellant."

After a brief statement of the facts, these grounds will be considered in the order set out.

Action No. 61, which was instituted by the Louisville & Nashville Railroad Company against Howser's administrator for new trial after judgment in case No. 60 was entered, is to be heard with this one on the merits. To obtain a new trial the railroad company avers:

"Plaintiff says that said judgment was obtained and secured entirely or in part by the fraudulent representation of the defendant and others interested in said action. It says that one Mae Bacon appeared at said trial dressed in mourning, and acting and posed and pretended to be the widow of the said Harris Howser, and the witnesses who testified in the case testified as to her relation with the said Harris Howser, and that she was living with him at the time of his death, and had written to him and corresponded with him and received letters from him but a very short time before his death, and counsel in argument of the case referred to her in eloquent and pathetic terms as a young and desolate widow, deprived of maintenance and support of her husband, all of which was untrue; that she was not living with or being supported or maintained by the defendant at the time of his death, and at the time of the trial she was not his widow, but that the said Harris Howser had died on the 26th day of August, 1912, but at the time of the trial, to wit, on the 5th day of October, she was not the widow of the said Howser, but that on the 30th day of September, 1921, she had married one Eddie Bacon, and was the wife of Eddie Bacon, all of which facts were fraudulently concealed from this plaintiff, and the plaintiff had no knowledge or information concerning same until long after the trial was had and judgment entered, and motion and grounds for new trial overruled, and could not have known same by exercise of due diligence, as the said marriage occurred in another state, and not in Kentucky."

A general demurrer was filed to the petition in the suit for new trial and sustained by the court. The plaintiff railroad company declining to further plead, its petition for new trial was dismissed, and of this it complains as error.

The evidence shows that Keene's crossing, at which Harris Howser came to his death, is on and in a cut through which the highway is built, and this cut intersects and crosses a cut of equal depth through which runs the tracks of the railroad company. The embankments on the railroad right of way are high, and on them at the time of the accident was a growth of green weeds, grass, and shrubbery located so as to obstruct the view of a traveler on the highway, and prevent him seeing the approach of trains to the crossing until such traveler almost arrived at the tracks. In approaching the crossing, decedent Howser and his companion came through a valley crossing a creek and up a steep incline onto the tracks. It is in evidence that blasts from the whistle of a train at the regular post, 50 rods from the crossing, could not be heard by persons on the highway near the creek, or as they went up the incline to the crossing. It is also shown that in going up the steep incline all or practically all automobiles had to be thrown into second or low gear, which caused more noise than when the same cars were traveling on level ground. It was not a new crossing, but one of many years' use. Taken as a whole, the crossing where Howser was killed, according to the evidence, was extrahazardous; indeed, one of the most dangerous of which we have read in the review of records in the many crossing accident cases which have come to this court. Appellant does not seriously attempt to controvert this fact; but it insists that, if it be admitted the crossing was extrahazardous, it was not shown to have been a much-traveled highway, and therefore the law requiring a railroad company to exercise care commensurate with the increased danger at such crossings was inapplicable, and should not have been embraced in the instructions of the court to the jury.

Before going into consideration of the questions on the original appeal, let us inquire whether the averment of the petition in the case for a new trial were sufficient to present a cause of action in favor of appellant company against the administrator of Howser. Copied above are all the material averments of that pleading. It is based upon the appearance at the trial of the late widow of deceased, dressed in mourning, and the reference of counsel for appellee, in argument of the case, to her as "a young and desolate widow, deprived of the maintenance and support of her husband," all of which declarations and assertions it is charged were false and untrue, and were calculated to and did mislead and deceive the jury, appellant, and its counsel into supposing that the woman, who was at the time of the trial and is now Mae Bacon, was at the same time the widow of the deceased, Howser, whereas she was not such widow at that time, having since the death of Howser remarried, becoming the wife of one Bacon. It is not averred nor claimed that the widow appeared as a witness, or that she took any part in the trial, except to appear as a mere bystander; neither does it appear from the record that the appellee or his counsel made any representations whatever to appellant or its counsel as to who the lady was or why she was there. As the former wife of the deceased, it was not only her right, but nothing more than could reasonably have been expected, for her to appear at the trial, assuming that she did not perpetrate a fraud and was not guilty of deceit. As she only appeared at the trial as a spectator, and did not participate in it as a witness or otherwise, we are unable to see how the appellant could have been prejudiced. The fact that she had remarried since the death of her husband did not militate against her right to attend the trial, or to participate in it, if she had desired to do so. As a matter of law her remarriage could not have relieved, in the slightest, the railroad company of its liability for the wrongful death of her husband, if any such liability it had incurred; nor could her remarriage have legitimately served to reduce the recovery. The action was on behalf of the estate of Howser, for the destruction of his power to earn money, to which she was not a party, either plaintiff or defendant. The petition, therefore, did not state a cause of action for a new trial, and the trial court properly sustained the demurrer to the petition.

Coming now, to the merits of the controversy, it is insisted by appellant that the court wrongfully excluded evidence, offered and introduced by it, showing that the deceased, Howser, and his companion were drinking, if not absolutely drunk, at the time of the disaster which brought about their death, and that this evidence was competent to show lack of prudence and care on the part of the deceased. One witness for appellant company testified that he was working in a field...