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

• Decision Date: 25 November 1910
• Citation: 131 S.W. 790,140 Ky. 759
• Parties: LOUISVILLE & N. R. CO. v. KIMBLE'S ADM'X.
• Court: Kentucky Court of Appeals

131 S.W. 790

140 Ky. 759

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

Court of Appeals of Kentucky.

November 25, 1910

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Mabel M. Kimble's administratrix against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Helm &amp Helm, Benjamin D. Warfield, and Chas. H. Moorman, for appellant.

Edwards Ogden & Peak, W. O. Bradley, and J. M. Chilton, for appellee.

O'REAR J.

St. Mathews is a suburb of Louisville. Several turnpike roads, lanes, and other highroads, as well as the tracks of the Louisville & Nashville Railroad traverse it. It is thickly populated, though not so dense as a city, but much more so than a rural settlement. Its dimensions, population, and traffic are more than a hamlet's. One of its roads is called "Chenowith Lane." It crosses the railroad at the station. At that point there are four railroad tracks, two main tracks, and two side tracks. The two latter just at the crossing have turnouts or switches, connecting with the two main tracks. Approaching the railroad from the north Chenowith Lane passes between buildings and fences. There is a curve in the railroad track beginning several hundred feet west of the crossing, which, owing to a cut in the right of way and fences, trees, and houses adjacent thereto and along the right of way, obstruct the view of the track in that direction from 400 to 500 feet, or perhaps less, until one gets onto the track. On July 28, 1908, Mabel M. Kimble, a nine year old child, was going from home, which was some distance from this crossing, to pay a visit to a relative living south of the crossing. She, in company with two other little girls, came down to the crossing, where the latter turned back, and she went on. As she got midway of the tracks which occupy about 40 feet in width, she became aware that a train was approaching rapidly from the west. Glancing hastily about, she ran and attempted to cross ahead of the coming train. The train was running about 50 miles an hour. It struck her, and hurled her for some distance against a telegraph pole. She was crushed to death. In this suit against the railroad company to recover damages for the destruction of her life, it is charged that the company negligently failed to give statutory warnings for the crossing, and that the crossing was exceptionally dangerous on account of its situation and the great numbers of persons using it, and that the company negligently failed to give other suitable warnings of the approach of its trains, knowing of the conditions, dangers, and travel. Negligence was denied. Contributory negligence was pleaded. The verdict was for the plaintiff. The amount is $6,000.

The principal error assigned for reversal is that the intestate was shown to have been guilty of such contributory negligence that the court should have peremptorily instructed the jury to a verdict for the defendant. We are persuaded from the evidence that the statutory signals for crossing were given. Also, that the engineer blew the whistle for the station. Also, that the automatic electric alarm bell at the crossing was working. We are likewise impressed that the child did not hear the whistle, or the engine bell, and that if she heard the electric crossing bell she did not know what it meant. She was walking along quietly, and showed no indication of fright, nervousness, or haste. She was old enough to have known the danger from the train had she been aware of its approach. Upward of 50 witnesses testified in this case. Nearly all of them testified upon the subject whether the whistle was blown, whether the engine bell was ringing, or whether the crossing bell was working. Some few, but very few, heard all three of the instruments. About half the number heard some one or two of them. Perhaps half, with equal opportunities for hearing, did not hear any of them. Of the latter, this fact may in part be accounted for because of the frequency of such noises, they failed to notice them. But many of these witnesses were so situated, and there were such reasons for attracting their attention to the subject that their failure to hear cannot be explained wholly on the ground stated. The railroad company had placed an electric alarm bell at the crossing, which was set in motion automatically whenever a train came within a certain distance. Such bells are not placed at all crossings. When they are used, it is because it is believed the dangers are more, and the travel greater, at those places than at ordinary rural crossings. It is a taking notice of the fact that the ordinary means of warning are not adequate for the particular crossing. Not adequate, not because ordinarily a locomotive whistle or bell is not understood by travelers, but because it is a known fact that where the traffic is so constant, or the tracks numerous where a great number of trains are passing, such warnings unless the engine is in sight, do not in fact convey the intelligence that it is about to use that particular crossing. ...