Louisville & N.R. Co. v. Heinig's Adm'x

• Decision Date: 18 December 1914
• Citation: 171 S.W. 853,162 Ky. 14
• Parties: LOUISVILLE & N. R. CO. v. HEINIG'S ADM'X.
• Court: Kentucky Court of Appeals

171 S.W. 853

162 Ky. 14

LOUISVILLE & N. R. CO. v. HEINIG'S ADM'X.

Court of Appeals of Kentucky.

December 18, 1914

Appeal from Circuit Court, Whitley County.

Action by Eugene R. Heinig's Administratrix against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Hiram H. Tye, of Williamsburg, Chas. H. Moorman and Benjamin D Warfield, both of Louisville, and J. W. Alcorn, of Stanford for appellant.

Popham Trusty & Roose, of Louisville, and J. C. Byrd, of Williamsburg, for appellee.

CLAY C.

Eugene Heinig was an engineer in the employ of the defendant Louisville & Nashville Railroad Company. On December 20, 1907, he was killed in a wreck. His widow and administratrix, Catherine D. Heinig, brought this action against defendant to recover damages for his death. The jury awarded damages in the sum of $21,000, which sum was apportioned equally to the widow and six children of the decedent. The defendant appeals.

At the time of the accident Heinig was the engineer in charge of north-bound passenger train No. 32, which collided with south-bound passenger train No. 33 at Savoy.

The trial court gave to the jury 19 instructions, in which were submitted for its determination the following grounds of negligence: (1) The meeting point at Savoy was changed without notice to the decedent. (2) Failure to provide sufficient rules, orders, methods, and appliances to make the meeting point of the two trains reasonably safe. (3) Failure of the employés of south-bound train No. 33 to change the switch in time to prevent the collision. (4) The failure of the conductor to angle-cock the train after the failure of Heinig to indicate by proper signal that he had the meeting point in mind, and intended to stop there. (5) Failure of defendant to adopt and have in use the blocksignal system.

In the event it found for plaintiff, the jury was told to state in its verdict under which instruction or instructions its finding was made. In response to this direction, the jury stated that its finding was under instructions Nos. 5, 6, and 12. Instruction No. 5 submitted the question of the conductor's failure to angle-cock the train. Instruction No. 6 submitted the question of defendant's failure to adopt and have in use the blocksignal system. Instruction No. 12 defined contributory negligence, and told the jury that under the Federal Employers' Liability Act contributory negligence did not defeat a recovery, but simply diminished the amount of the recovery, etc. The petition also charged that defendant was negligent in permitting the trains to meet at Savoy, because of the topographical conditions there existing; and defendant was further negligent because those in charge of the waiting train No. 33 permitted it to stop too near the switch. These grounds of negligence, however, were not submitted to the jury.

Savoy is a telegraph station about a mile from Williamsburg. There is one switch north of Savoy. About 100 feet south of Savoy is the Pine Mountain Spur main. There are two other switches, Nos. 1 and 2, south of the station next to Pine Mountain Spur. Beginning a few feet south of the station, and extending for a distance of several hundred feet, was another track which had a capacity of about 50 cars. The main track curves at a point a short distance below the south switch of this passing track. There are also some trees and a large embankment near the switch point. Prior to November 29, 1911, the Pine Mountain Spur was used as a passing track at Savoy. On that date the trainmaster issued Bulletin Board Order No. 277, the material parts of which are as follows:

"All Concerned: Effective at noon Monday, December 4th, the tracks at Savoy will be used as follows:

The track south of depot as a passing siding. This track has a capacity of 50 cars, and derail will be removed from this track.

Track north of depot and parallel with main line, as a north-bound storage, having a capacity of 32 cars.

Track No. 1, next to Pine Mountain main, as a storage for Pine Mountain cars, this track having a capacity of 49 cars.

Track No. 2, which is parallel with No. 1, as a storage for south-bound leads; capacity 49 cars.

Derailers have been placed at clearance points on north end of Nos. 1 and 2 tracks."

This bulletin was posted at passenger stations and roundhouse at Corbin and Etowa, at the yard offices at Corbin and Etowa, the general foreman's office at West Knoxville, and at the passenger station at Knoxville. For a portion of the time after this bulletin was posted decedent was running between Marysville and Knoxville. Savoy was not on that line. At the time of the accident decedent had been employed on the main line, where Savoy was located, for a little less than two weeks. He was making his ninth single trip. On each trip he passed by Savoy in the daytime. The rules require the engineer to examine the bulletin board before going out on his trips. There was some evidence to the effect that, where the time is not sufficient to apprise trainmen of a change, it is customary to send out a special telegraphic bulletin order. On the day of the accident decedent and the conductor of train No. 32 received a 31 order to meet No. 33 at Williamsburg and No. 37 at Rockhold. When the train reached La Follette the engineer and conductor were each handed a 19 order, directing train 32 to meet train 33 at Savoy. In approaching the switch of the passing track at Savoy it was the duty of the decedent to have his train under control. He did not reduce the speed of the train, but at a point about 500 feet south of the switch was going in the neighborhood of 35 miles an hour. Nor did the decedent blow the meeting signal. When the fireman discovered they were approaching the meeting point he "hollered" to Heinig. Heinig then jumped off his seat, and blew three blasts of the whistle and drew off all the air. The purpose of these three blasts was to have the other train back up. It was then too late to stop the train, and there was a front-end collision between it and train 33. There was also evidence to the effect that 33 had just come to a stop about four car lengths from the switch. It had probably stopped for 50 or 60 seconds.

It further appears from the rules of the company that while both conductors and engineers are responsible for the safety of their trains, and must take every precaution for their protection, the general direction and government of the train is vested in the conductor. He is held responsible for its safe and proper conduct, and the men employed on the train are required to yield willing obedience to his proper orders.

Another rule provides:

"90 (f) Enginemen of passenger trains approaching sidings at which they are to meet or be passed by trains of the same or superior class, either by schedule or right, or inferior class trains by right, will immediately after sounding the station whistle (Rule 14m), give one short sound of the whistle (Rule 14a).

Conductors will place themselves in position to hear these signals, and failing to clearly hear and understand them, must stop their trains.

The proper place for enginemen to sound station whistle (Rule 14m) is at a point one-half mile from the headblock of first passing siding switch."

There was evidence tending to show that the decedent did not blow either the station whistle or the short whistle for the purpose of indicating that he was approaching a meeting point. There was also evidence to the effect that the conductor did not attempt to angle-cock the train until just about the time of the collision.

Plaintiff also introduced a number of witnesses who testified to the value of the blocksignal system as a safety device. This system was in use by a number of roads, and, if it had not rendered collisions practically impossible, it had materially reduced the number of accidents of that kind. This system is used principally in the North. It is in use on certain portions of defendant's lines. Perhaps only about 10 per cent. of the roads of the South use this system.

Though the jury based its verdict on the failure of the defendant to equip its road with the block-signal system, and the failure of the conductor to angle-cock the train, we deem it necessary, in view of another trial, briefly to discuss the other grounds of negligence relied on.

(1) With respect to the claim that the meeting point at Savoy was changed without notice to decedent, and that defendant was negligent in not having sufficient rules to give notice to decedent of the change in the meeting point, the following facts appear: The bulletin making the change in the passing track at Savoy was posted at several places. Every witness who testified, saw it at some one of these places. At certain of these places it was seen after the accident occurred. The evidence leaves no doubt that, if the decedent had looked, he too would have seen the bulletin. It is no answer to this proposition to say that his conduct shows that he did not know of the bulletin. It was his imperative duty to look, and he is charged with knowing that which an examination of the bulletin would have disclosed. The charge that the bulletin was itself indefinite, in view of the conditions existing at Savoy, is more imaginary than real. It is true that there are four tracks south of Savoy. A change was made from the Pine Mountain Spur to the track south of Savoy, which was capable of holding 50 cars. Pine Mountain Spur was thereby excluded. Tracks 1 and 2 adjoining the Pine Mountain Spur were likewise excluded, for they were set apart by the bulletin as storage tracks, and provided with derails. This left only the fourth track, which is the one set apart as a passing track. For the...