Louisville & N.R. Co. v. Blanton

• Decision Date: 28 February 1947
• Citation: 304 Ky. 127,200 S.W.2d 133
• Parties: LOUISVILLE & N. R. CO. v. BLANTON.
• Court: Kentucky Court of Appeals

200 S.W.2d 133

304 Ky. 127

LOUISVILLE & N. R. CO. v. BLANTON.

Court of Appeals of Kentucky

February 28, 1947

Appeal from Circuit Court, Harlan County; James S. Forester, Judge.

Action by Sudie Blanton against Louisville & Nashville Railroad Company to recover for destruction of taxicab in grade crossing collision and loss of its use in taxi service. Verdict and judgment for plaintiff, and defendant appeals.

Judgment affirmed.

C. S. Landrum and C. E. Rice, Jr., both of Lexington, H. L. Bryant, of Pineville, and J. C. Baker, of Harlan, for appellant.

G. E Reams, of Harlan, for appellee.

LATIMER Justice.

Joe Dunreath Blanton, driving a taxicab in the employ of his mother, Sudie Blanton, delivered a passenger to the camp of the Three Point Coal Company in Harlan County. On the return trip to the City of Harlan sometime between the hours of 1:00 and 2:00 o'clock P.M. on Saturday, December 15, 1945 while attempting to cross appellant's railroad tracks at a grade crossing, the taxicab was struck by an engine hauling nine cars loaded with coal. The driver was uninjured, but the taxicab was practically destroyed. The cars were coupled to the front end of the engine, thus the engine itself was backing although pulling the load. Blanton testified that he stopped the taxicab, looked and listened; that he neither saw nor heard the approaching train; that he then proceeded upon the crossing. When the front wheels of the cab were on the track he first heard the train whistle, but it was so close that he concluded he could not negotiate the crossing by continuing in a forward direction; that he thereupon applied the brakes, reversed the gears, and attempted to back, but, because he was attempting to back up a slight grade on which snow had fallen, he was unable to free his car from the danger. Sudie Blanton instituted this action against appellant to recover damages for the destruction of the car and for the loss of its use in taxi service for the period of time she alleged she was unable (because of the peculiar market condition created by the war) to procure another to take its place in the taxicab service. Judgment was entered upon a verdict in appellee's favor in the sum of $900.

Appellant urges reversal upon the grounds that the court erred, (1) in not directing a verdict in its favor at the conclusion of the evidence for the plaintiff and at the conclusion of all the evidence; (2) in erroneously permitting appellee to introduce incompetent evidence in her behalf; and (3) in the giving of Instructions 1 and 2 to the jury.

The chief argument in support of the first contention is that appellant was under no duty to sound a warning of the approach of its train, because the accident occurred at a private and not a public crossing; and since the sole negligence relied on by appellee is the failure of appellant's agents to sound the statutory signals for a public crossing, the Court should have peremptorily instructed the jury to return a verdict in favor of appellant. This theory must be rejected, because we are of the opinion, in considering the testimony and evidence as a whole, the accident occurred at a public crossing. It is true the particular crossing in question was not constructed until 1934, and never had been accepted formally by the County, although previous to that time a public road had been maintained to serve the same territory. A portion of the original road was destroyed when the railroad was built from Harlan to the Three Point Coal Company camp. Thereafter the highway was constructed in its present location. The Railroad Company actually constructed the crossing and a portion of the present highway on its own property, but at the expense of and under an agreement with the Three Point Coal Company. KRS 277.060(2) provides that every railroad company shall, as soon as may be, restore to its former condition any highway upon or across which it has constructed its line, and shall maintain the road in its former condition within the right of way of the railroad company. Irrespective of the private agreement between the Railroad Company and the Coal Company (and which incidentally never was executed by the latter), we can not escape the conclusion that the present highway was located and was built pursuant to the provisions of the Statute above referred to. It was shown by uncontradicted evidence that Harlan County has built and maintained a bridge on the road in question, and that the State Highway Commission and Harlan County have maintained the road previous to the change in its location. That appellant itself considered the crossing to be a public one is evidenced by the fact that it maintained a sign on both sides of the crossing at statutory distances therefrom in compliance with KRS 277.160, and, in addition, maintained a whistling post on its railroad line at a point fifty rods distant from the crossing pursuant to the provisions of KRS 277.190.

It is argued next in support of the first contention that, under KRS 281.340, it was the duty of appellee's driver to stop the taxicab at a point not less than ten nor more than thirty feet from the railroad track and not to proceed upon the crossing until he ascertained that no train was approaching. Counsel for appellant in their brief state: 'It is very plain, even from the evidence of appellee's chauffeur, that he did not comply with the provisions of that section of the statute.' We do not so construe the chauffeur's testimony. He stated emphatically that he made two stops: The first as he approached the crossing 'right close to that crossing sign,' the second when he heard the train whistle blow, at which time the front wheels of his cab were on the railroad track. But irrespective of the testimony on this point, as will hereinafter be seen, the provisions of KRS 281.340 do not require the driver of a taxicab to stop, look, listen, and ascertain that no train is approaching before he proceeds upon a railroad crossing. KRS 281.340 provides:

'The chauffeur of every motor vehicle used in the common carriage of passengers for hire shall stop the vehicle before crossing at grade the main track of any railroad or interurban electric railway, except where the crossing is a guarded crossing protected by gates or a flag controlled or operated by an employe of the railroad or interurban company. The stop shall be made at not less than ten feet nor more than thirty feet from the nearest track to be crossed. After making the stop, the chauffeur shall look carefully in each direction for approaching cars or trains, and shall not start his vehicle until he has ascertained that no cars or trains are approaching in either direction.'

KRS 281.010(3) defines 'common carrier' to be 'any operator of a motor vehicle for hire in common carriage other than the operator of a taxicab or city bus, except that the operator of a city bus who obtains a certificate under subsection (2) of KRS 281.040 shall thereupon become a common carrier as to that portion of its operation covered by such certificate.' It is manifest from the evidence that appellee's taxicab was not being used in the common carriage of passengers for hire as defined by the Statutes. But appellant contends that, since the reply did not controvert an allegation contained in the answer to the effect that the taxicab in question 'was being used in taxi service and in the common carriage of passengers for hire, and (appellee's chauffeur) was driving and operating the vehicle in that service at the time of the accident as agent and employee of the plaintiff,' appellee was precluded from introducing any evidence in contradiction of the contention that the taxicab at the time of the accident was being operated in the common carriage of passengers for hire, therefore the pleadings invoke the provisions of KRS 281.340, supra. But it will be noted that the allegation contained in the answer specifically sets out the fact that appellee's cab was being used and operated in taxi service at the time of the accident; and, although it might have been engaged in the common carriage of passengers for hire, as such language ordinarily may be construed, nevertheless, since it was a taxicab, so engaged, it comes within the exception to the Statute and not under the provisions thereof.

We pass to the complaint that the Court erroneously permitted appellee to introduce incompetent evidence in her behalf. Joe Blanton, the driver of the automobile at the time of the accident, stated that he was acquainted with the fair market value of automobiles in Harlan at the time of the accident he was then asked what, in his opinion, was the fair market cash value of the machine in question, and he answered $1500. It is insisted that this evidence is incompetent, because the word 'cash' was used in ascertaining the value he placed on the car...