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

• Decision Date: 03 December 1909
• Citation: 122 S.W. 833
• Parties: LOUISVILLE & N. R. CO. v. ENGLEMAN'S ADM'R.
• Court: Kentucky Court of Appeals

122 S.W. 833

LOUISVILLE & N. R. CO. v. ENGLEMAN'S ADM'R.

Court of Appeals of Kentucky.

December 3, 1909

Nunn C.J., dissenting in part.

Appeal from Circuit Court, Lincoln County.

"To be officially reported."

Action by Bessie Kay Engleman's administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Benjamin D. Warfield and J. W. Alcorn, for appellant.

Robert Harding, E. V. Puryear, M. C. Saufley, and Greene, Van Winkle & Schoolfield, for appellee.

HOBSON J.

Bessie Kay Engleman, while driving a phaëton across the Louisville &amp Nashville railroad track at a private crossing known as "Woods' crossing," about 2 1/2 miles north of Stanford, Ky. was struck by the north-bound passenger train and killed. This action was brought by her administrator to recover for her death, and, a recovery having been had in the sum of $10,000, the railroad company appeals.

The pike ran on the opposite side of the railroad from the home of the decedent. To get out to the pike from her home, she used a private road, and was struck where this road crossed the railroad. The road was used as an outlet by persons living on the farms of Samuel Harris and Eph Woods, including their tenants and persons going to or from their places on business or pleasure. There was a gate at the edge of the railroad right of way, 62 feet from the track. The private road passed through a cut just before it reached the railroad, so that a person driving a vehicle could not see an approaching train until he was within a few feet of the track, and those in charge of the train would be equally unable to see him until about the same time, unless the top of the vehicle was high enough to be visible above the cut as it approached the track. The evidence for the plaintiff tended to show that the crossing was especially dangerous that the railroad trains were accustomed to give signals of their approach to the crossing, and that no warning of the approach of this train was given. There was also much evidence tending to show that the trains sometimes gave signals of their approach, and sometimes did not, although the engineer of this train testified that he regarded it a dangerous crossing, and always gave the usual crossing signals as he approached it. The evidence for the defendant tended to show that the decedent drove on the crossing without looking or listening when the train was very close to it, and when it was too late for those in charge of the train to avert the injury to her. It also showed that the train gave the usual crossing signals as it approached.

On this evidence, the court, refusing to instruct the jury peremptorily to find for the defendant, gave the jury the following instructions:

"No. 1. If you believe from the evidence that the railroad crossing over the private passway, known and spoken of in the testimony as the 'Woods crossing,' is a dangerous crossing for persons traveling thereover in buggies in an ordinarily prudent manner, then it was the duty of the employés of defendant in control of the train that struck the deceased, when moving the train on that part of the track approaching said crossing, to keep a lookout for persons traveling over same in a vehicle or vehicles, and to give reasonable signals and warnings of the movement of its train when approaching said crossing, and if you believe from the evidence that the defendant's employés in charge of said train negligently failed to perform any of these duties in the movement of said train, and that by reason thereof the plaintiff's intestate while crossing, or attempting to cross, said crossing, was run against and killed by said train, and that the deceased was at the time using ordinary care for her own safety, then you will find for the plaintiff in damages such a sum as you believe from the evidence will reasonably compensate the estate of the deceased for the destruction of her power to earn money, not exceeding the sum of $30,000.

"No. 2. Although you may believe from the evidence that the employés on the train gave reasonable signals of the approach of the train to the Woods crossing, yet if you further believe from the evidence that the employés in charge of the movements of the train discovered the peril of the deceased in time to have avoided the collision by the use of the available means and appliances at hand, then you should find for the plaintiff."

"No. 5. Unless the defendant's employés in charge of the train were negligent as defined in instruction No. 1 then you will find for the defendant; and although you may believe from the evidence that there was such negligence on the part of said employés, yet, if, in going on the track as she did, the deceased failed to use ordinary care for her own safety, and but for this would not have been injured, then you will find for the defendant, notwithstanding such negligence on its part."

It has been held by this court in a number of cases that the railroad company may run its trains at such speed as it pleases over private crossings, and that it is not required to give notice of the approach of the trains to such crossings, unless it has been...