Louisville & N.R. Co. v. Horton

• Decision Date: 16 March 1920
• Citation: 187 Ky. 617,219 S.W. 1084
• Parties: LOUISVILLE & N. R. CO. v. HORTON.
• Court: Kentucky Court of Appeals

219 S.W. 1084

187 Ky. 617

LOUISVILLE & N. R. CO. v. HORTON.

Court of Appeals of Kentucky.

March 16, 1920

Appeal from Circuit Court, Lee County.

Action by C. B. Horton against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Benjamin D. Warfield, of Louisville, and Sam Hurst and G. W. Gourley both of Beattyville, for appellant.

J. M McDaniel, of Beattyville, and Hobson & Hobson, of Frankfort for appellee.

HURT J.

The appellee, C. B. Horton, at the time of his injury resided about 1 1/2 miles from Athol, which is a station upon the appellant's railroad, and near thereto were four or five dwelling houses. He was struck by the engine of a freight train of the appellant about 100 feet from an "underground crossing" of the public highway over the railroad tracks, and the point at which he was injured was about midway between the "underground crossing" and the station. The collision occurred between 9 o'clock and 10 o'clock p. m., and he suffered injuries to recover damages for which he sued the appellant and recovered a judgment for the sum of $5,000, to reverse which this appeal is prosecuted.

The facts relating to the case, as detailed by the appellee, are as follows: He was returning to his home from the state of Ohio, and about 4 o'clock p. m. he drank "two drinks" of whisky, and slept on the train from Winchester to Athol, where he was awakened by some one, and left the train, forgetting his suit case in which he had a quantity of whisky. After arriving at Athol, he remained there about 45 minutes, and, the night being very dark, he made an effort to secure a light; but, failing in this, he left there and started along the railroad track in the direction of his home, and continued until he passed over the point where the public highway crosses the railroad track. This crossing is designated in the evidence as the "underground crossing." At this point the appellee concluded to return to the station, for the purpose, as he says, of getting a horse upon which to ride to his home. About this point he claims to have sprained his ankle, which made necessary the removal of his shoe from his foot, and the ankle became so swollen that he could not restore the shoe to his foot. While walking along upon the embankment of the railroad in the direction of the station, but not upon the track, he heard the whistling signal, given for the crossing or the station by a freight train, which was approaching the station from the direction from which he was traveling, and heard the noises which accompany a moving freight train. When the train had approached within about 300 yards of him, he saw the headlight of the engine, and, although he was then at a considerable distance from the station, he concluded to pass over the track in front of the approaching train, as he says, for the purpose of going to the station. There was no one then at the station, but he says the door of the waiting room was open. In attempting to cross over the track, his foot slipped and he fell between the rails and was unable to remove himself entirely from the track before the engine of the train struck him; that he exerted himself with all of his might to get off of the track, and got himself clear of it, except one leg, which was broken, and one hand injured. He further testified that, within two minutes after he suffered the injuries, the engineer of the train came to him and inquired if he was hurt, and, when he announced the affirmative, the engineer said, "You are killed," and then said to him that he saw him when he fell upon the track, and had seen him for the distance of eight or nine rail lengths before he fell; that he saw the white shirt, which appellee was wearing, but appellee says that the engineer was mistaken about seeing his shirt, as his coat was buttoned, but that it was his white hat which the engineer saw. Appellee also deposed that he had had the experience of a fireman for a locomotive engine for three years, and that the headlight of the engine enabled an engineer to see along the track, at the point where he was injured, for at least one-half of a mile in front of the train, as the track was straight. He also deposed that he saw the headlight of the approaching train before he attempted to cross the track. When asked where the engineer was at the time of the trial, the appellee, upon direct examination, stated that the engineer was dead; but upon cross-examination, being interrogated as to his statement with reference to the engineer being dead, he said, "That is what I understand, I don't know," and further that he did not know the name of the engineer.

The conductor and fireman of the train, being called as witnesses by the appellee, testified that the train consisted of about 40 cars, each of about 40 feet in length; that it was moving from 15 to 20 miles per hour; that upon the track where appellee was injured the train could be brought to a standstill within from three to four car lengths from the time of the application of the brakes "in emergency"; and that, when the train upon this occasion was stopped, the body of appellee was lying beside the third car from the engine and about one-third of the length of that car from its end, which was nearest the engine. The fireman further deposed that he was looking out upon the track from his side of the engine previous to the stopping of the train, and did not see appellee upon the track, which at that point was describing a curve, and that he was engaged in ringing the bell as the train approached the point of collision, and that when the train stopped he inquired of the engineer, "what was the matter," and the engineer replied:

"My God! I hit a man back there. I did not see him, until I got right on him."

The fireman further stated that he was present during all the time that the engineer was where the plaintiff was, and that the engineer did not say to the plaintiff that he saw him fall upon the track when the train was eight or nine rail lengths away, and did not make the statement which plaintiff deposed that he made. The conductor testified that the engineer made the same statement in regard to seeing the appellee as the fireman stated was made to him, and further that the engineer said that, immediately upon seeing what he thought was a white shirt of a man sitting upon the right side of the track, he applied the brakes "in emergency."

There is no evidence to the effect that the engineer saw the plaintiff upon the track, except the above declarations of the engineer as made by the plaintiff, the conductor, and the fireman, respectively. The plaintiff in another place in his testimony deposed that the place where he was struck by the train was about 100 hundred feet from the "underground crossing," and about 100 yards from the station at Athol.

The appellant complains of the rulings of the trial court, and insists that it was error when the trial court overruled his motion to strike out certain matter from the petition and overruled his demurrer to the petition, and erred to his prejudice in the admission of incompetent testimony upon the trial, and further erred to its prejudice in giving and refusing instructions to the jury.

(a) The appellee, by his petition, first averred that the cause of his injuries was the negligence, generally, of the appellant in running its train against him. This was a general charge of negligence and was sufficient to have enabled him to prove upon the trial any specific act of negligence of which appellant may have been guilty, and to have recovered for any negligence which he could prove as the proximate cause of his injuries and relative to the operation of its train. This general averment of negligence was, however, followed by allegations of specific acts which constituted the negligence from which the injuries were suffered. The specific acts of negligence alleged as the cause of his injuries were: (1) The operation of the train at a negligent rate of speed; (2) the failure to give a signal required by law of the approach of the train to a public crossing; and (3) that the servants operating the train discovered him in a position of peril, and negligently failed to use ordinary care to avoid injury to him. In an endeavor to show that the appellant owed the appellee a duty of operating its train at a moderate rate of speed at the place of his injury and to give a warning of its approach, the appellee, after having averred that he was injured by a collision of the train with him "within a few steps of the crossing thereat," then averred that at the place where he was injured he and the other members of the community relied upon the statutory signal for the crossing to enable them to know of the approach of a train, and that the appellant knew that great numbers of people in the community used the railroad track at that point as a passway while traveling on horseback and on foot, and not only acquiesced therein, but had compelled them to so make use of the track by having rendered the nearby highway impassable from having thrown dirt and various débris into it.

The rule applying to pleading the causes of injuries from negligence and to the admission of evidence in such...