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

• Citation: 180 Ky. 733,203 S.W. 876,181 Ky. 227
• Parties: LOUISVILLE & N. R. CO. v. ELMORE'S ADM'R. [a1]
• Decision Date: 28 May 1918
• Court: Court of Appeals of Kentucky

203 S.W. 876

180 Ky. 733, 181 Ky. 227

LOUISVILLE & N. R. CO. v. ELMORE'S ADM'R. ^[a1]

Court of Appeals of Kentucky.

May 28, 1918

Modified Opinion, June 21, 1918.

Appeal from Circuit Court, Madison County.

Action by John Elmore's administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff of $1,200 and defendant appeals. Reversed, with directions. Modified on subsequent opinion.

Burnam & Burnam, of Richmond, Shelby, Northcutt & Shelby, of Lexington, and Benjamin D. Warfield, of Louisville, for appellant.

Chenault & Wallace, of Richmond, for appellee.

THOMAS J.

John Elmore, while riding on a hand car upon the track of the Louisville & Nashville Railroad Company in Madison county, on November 20, 1916, at about 5:30 p. m., was killed by a train approaching from the rear and colliding with the hand car. His administrator brought this suit against the railroad company to recover damages accruing to his estate because of his death, charging in a general way that the decedent was killed as a result of the negligence of the defendant, its agents and servants, in the operation of the train which collided with the hand car. The answer contained a general denial of the averments of the petition and a plea of contributory negligence, which was denied, and upon trial the plaintiff recovered a judgment for the sum of $1,200. Complaining of the judgment, the defendant prosecutes this appeal.

The accident occurred some 2 1/2 or 3 miles north of the town of Berea, about 50 or 60 yards south of a private crossing, and something near a mile north of a public crossing. The hand car and the train were both moving north. Between Berea and the place of the accident there was but one public crossing being the one just mentioned, but there were some two or three private crossings, and it is insisted by plaintiff both in the evidence introduced and in argument of counsel here, that the defendant was negligent in failing to give signals for not only the public crossing about a mile south of the place of the accident, but likewise failed to signal for the private crossing between the place of the accident and Berea, which, if done, as is insisted, plaintiff's decedent would have had warning of the approach of the train in time to avoid the accident. It is further insisted upon as an act of negligence that the train which produced the collision was not equipped with a headlight, or, if so, that it was not burning so as to enable the decedent to discover the approach of the train from the rear by the reflection of the light upon the track ahead, and thereby enabling him to avoid the accident.

The proof shows that at that hour of the day and at that season of the year it was practically dark. Elmore was a section hand, and had been at work as such for 15 or 16 years. The day's work had closed at 5 o'clock, and the crew had gone into Berea, but Elmore and two other section hands lived north of Berea, near the railroad track, and with the permission of the section boss they used the hand car to transport themselves to their respective homes. One of them had left the car at the public crossing, while the decedent and another proceeded along the track, and were both on the car at the time of the collision; the companion of the decedent receiving slight injuries, from which he eventually recovered.

Upon the issue as to whether signals were given for the public crossing south of the accident by the train which collided with the hand car, the evidence largely preponderates that signals were given for that crossing, and for at least some of the private crossings between the place of the accident and Berea. No one disputes but that the proper signals were given for the town of Berea, and which were heard by a number of people in the vicinity of the accident, as were also the signals given at the public crossing, but the surviving companion of the decedent, as well as one or two other witnesses who testified for the plaintiff, say that they did not hear such signals. They do not show that they were in a condition to hear the signals had they been given, except the fact that they were near enough to have heard them if they were so circumstanced at the time, and their attention was not otherwise attracted.

Upon the point concerning the burning of the headlight, all the evidence shows that there was a burning headlight, and the only circumstance even slightly indicative of the contrary is that the surviving companion of the decedent says that he did not see any reflection of the light upon the track around and ahead of the hand car before the collision. Besides the servants in charge of the train, and others upon it, testifying to the burning of the headlight, witnesses who saw the train back up after the accident say that it was then burning.

However, the question still remains whether the defendant is liable for either of such alleged acts of negligence, for if it did not owe a duty to decedent to give the signals which it is claimed were not given, or to have the engine equipped with a headlight, it would necessarily follow that it was not guilty of negligence in failing to do either of those things. In support of the contention that it was negligence to fail to give the signals complained of, we are referred to the case of Cahill v. Cincinnati, etc., Ry. Co., 92 Ky. 345, 18 S.W. 2, 13 Ky. Law Rep. 714, and other cases from this court following it. In that case it was held that one about to use a private crossing constructed for his benefit under a contract with the railroad company was entitled to rely upon and have the benefit of signals at a nearby public crossing, which signals had been customarily relied upon by those entitled to use the private crossing, and that a failure to give signals at the public crossing would constitute negligence toward one about to use the private crossing under the circumstances narrated. But the rule was strictly confined in its application to the benefit of one about to use the private crossing in passing over the railroad track, and this court has consistently confined the application of the doctrine of that case within such limitations, and has never extended it to cases other than for the protection of those about to use the private crossing. N. N. & M. V. Ry. Co. v. Deuser, 97 Ky. 92, 29 S.W. 973, 17 Ky. Law Rep. 113; L. & N. R. R. Co. v. Vittitoe, 41 S.W. 269, 19 Ky. Law Rep. 614; Elliott v. L. & N. R. R. Co., 99 S.W. 233, 30 Ky. Law Rep. 472; C., N. O. & T. P. Ry. Co. v. Harrod's Adm'r, 132 Ky. 445, 115 S.W. 699; L. & N. Ry. Co. v. Redmon's Adm'x, 122 Ky. 386, 91 S.W. 722, 28 Ky. Law Rep. 1293; L. & N. Ry. Co. v. Jenkins, 168 Ky. 512, 182 S.W. 626; L. & E. Ry. Co. v. Smith's Adm'r, 172 Ky. 117, 188 S.W. 1091. The same confining effect to the requirement of signals was announced in the case of Shackleford's Adm'r v. L. & N. R. R. Co., 84 Ky. 43, 4 Am. St. Rep. 89, decided by this court some five years prior to the Cahill Case. Since the decedent was not using nor attempting to use any character of crossing at the time he was injured, the rule sought to be invoked by counsel for appellee has no application under the facts of this case. If it be conceded--a fact which we do not feel called upon to determine--that decedent at the time of his death was rightfully upon the track of the defendant because of the permission of the section foreman for him to use the hand car, he still occupied no greater relationship to the defendant than the foreman of a section crew engaged in working upon the track during work hours, for at the time the car was in his and his companion's charge, and it was being used by them for their own benefit. They were in charge of that car at that time, and there is no question here as to whether they were at the time performing duties for the master who would then be obligated to furnish a reasonably safe hand car, because the injury complained of is not the result of any such failure. Assuming, then, that defendant owed to the decedent at the time the same duties that railroad companies generally owe to those working upon its tracks, let us briefly consider what such duties are, and whether under them the defendant is liable in this case.

The two cases of C., N. O. & T. P. Ry. Co. v. Swann's Adm'x one reported in 149 Ky. 141, 147 S.W. 889, the other in 160 Ky. 458, 169...