Louisville & N.R. Co. v. Louisville Provision Co.
| Decision Date | 02 February 1926 |
| Parties | LOUISVILLE & N. R. CO. v. LOUISVILLE PROVISION CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.
Action by the Louisville Provision Company against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Woodard Warfield & Dawson, of Louisville, for appellant.
Thos. C. Mapother, of Louisville, for appellee.
On July 8, 1922, while crossing the tracks of the Louisville & Nashville Railroad Company at Hiawatha avenue, within the corporate limits of the city of Louisville, a truck owned and operated by appellee, Louisville Provision Company, was struck and demolished by one of its passenger trains. This action was instituted by appellee, as plaintiff below, to recover the damages thereby suffered, upon the theory that the collision and resulting damages were the result of appellant's negligence. The issues were: Negligence, or no negligence, upon the part of appellant, and, if any, whether or not the injury resulted therefrom; and contributory negligence, or none, upon the part of appellee. The trial resulted in a verdict and judgment for $2,236.44, from which this appeal has been prosecuted.
Upon the trial of the case, appellee, over the objection of appellant, introduced in evidence an ordinance of the city of Louisville, which provides that railroad companies shall erect and maintain at all street grade crossings an electric gong or signal, to give warning of approaching trains. The proof herein, without contradiction, established that no such gong or signal was maintained at the Hiawatha avenue crossing. By the instructions herein the trial court advised the jury, inter alia, that it was the duty of appellant to erect and maintain at the crossing in question an electric gong or signal, to give warning of approaching trains, and that its failure to do so was negligence, and if by reason thereof the truck owned by appellee was struck and injured the jury would find for appellee.
The chief ground urged by appellant for the reversal of the judgment herein is that the trial court erred in admitting the ordinance in evidence and in instructing the jury thereunder as indicated. Dolfinger & Co. v. Fishback, 12 Bush, 474, L. & N. R. R. Co. v. Dalton, 102 Ky. 290, 43 S.W. 431, 19 Ky. Law Rep. 1318, Southern Ry. Co. v. Wood, 52 S.W. 796, 21 Ky. Law Rep. 575, Ward's Adm'r v. I, C. R. Co., 56 S.W. 807, 22 Ky. Law Rep. 191, L. & N. R. Co. v. Redmon's Adm'r, 122 Ky. 385, 91 S.W. 722, 28 Ky. Law Rep. 1293. Ford's Adm'r v. Paducah City Ry. Co., 124 Ky. 488, 99 S.W. 355, 30 Ky. Law Rep. 644, 8 L. R. A. (N. S.) 1093, 124 Am. St. Rep. 412, C. & O. Ry. Co. v. Gunter, 108 Ky. 362, 56 S.W. 527, 21 Ky. Law Rep. 1803, and C. P. Ry. v. Kuhn, 86 Ky. 578, 6 S.W. 441, 9 Ky. Law Rep. 725, 9 Am. St. Rep. 309, are relied upon by appellant as establishing the doctrine in this jurisdiction that municipal ordinances are not admissible in evidence, and that a showing that a municipal ordinance has been violated does not make a case of negligence upon the trial of a civil action for tort. Appellee insists with equal vigor that Mullins v. Nordlow, 170 Ky. 169, 185 S.W. 825, Wigginton & Sweeney v. Bruce, 174 Ky. 691, 192 S.W. 850, Brady v. Straub, 177 Ky. 468, 197 S.W. 938, L. R. A.
1918D, 197, Louisville Trust Co. v. Morgan, Adm'r, 180 Ky. 609, 203 S.W. 555, 7 A. L. R. 396, Adams Bros. v. Clark, 189 Ky. 279, 224 S.W. 1046, 14 A. L. R. 738, and Johnson et al. v. Westerfield's Adm'r, 143 Ky. 10, 135 S.W. 425, establish the doctrine in this jurisdiction that municipal ordinances are admissible in evidence, and that evidence tending to establish their violation is sufficient to make a case of negligence in an action for damages resulting from a tort.
The cases cited seem to be in conflict, and appellant and appellee seem to be able to fortify the opposing positions they have taken with respectable authority. The particular question here presented, however, seems to have been made the subject of legislative enactment, which controls this court in its decision. Section 786, Kentucky Statutes, provides first the duties of railroad companies as to warning signals that must be given upon the approach of a railroad train to a highway crossing in all parts of the state outside of incorporated cities and towns. After so doing it further provides:
"And shall give such signals in cities and towns as the legislative authorities thereof may require."
Further, in providing penalties for the violation of any of its provisions, it decrees that:
"The railroad company shall, in addition to subjecting itself to any damages that may be caused by such failure or violation, be guilty of a misdemeanor," etc. (Italics ours.)
In the case now before us, the municipal ordinance required that appellant erect and maintain at the crossing in question an electric gong or signal, to warn those using the street of approaching trains. The proof without contradiction establishes that no such gong or signal had been erected or was then being maintained. Section 786 of the Statutes, supra, expressly makes it the duty of railroad companies to give such signals at grade crossings in cities and towns as the legislative authorities thereof may require. It further expressly provides that for failing to do so a railroad company renders itself liable for such damages as may result therefrom. In view of the statute above, this court has concluded that the trial court properly admitted the ordinance in question in evidence, and properly instructed the jury that it was appellant's duty to observe it, and that it was negligent in failing to do so.
It is insisted for appellant that much incompetent evidence prejudicial to it, was admitted over its objection upon the trial hereof. The conclusion above reached as to the...
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