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

• Decision Date: 26 January 1909
• Citation: 115 S.W. 719
• Parties: LOUISVILLE & N. R. CO. v. TOWER'S ADM'R.
• Court: Kentucky Court of Appeals

115 S.W. 719

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

Court of Appeals of Kentucky.

January 26, 1909

Appeal from Circuit Court, Boyle County.

"To be officially reported."

Action by John E. Tower's administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded for new trial.

Chas R. McDowell, Chas. H. Rodes, and Benjamin D. Warfield, for appellant.

E. M Hardin, Robt. Harding, E. V. Puryear, and John A. Rawlings for appellee.

O'REAR J.

The intestate, John E. Tower, was struck and killed by a train on appellant's road at Mitchellsburg under these circumstances: He, as a volunteer, was carrying the mail bag for the postmaster to put it on the local mail train, known as No. 23, which was due to pass that station about 11:30 a. m. on a day in August. The post office was about 60 yards from the station. Mitchellsburg is an unincorporated hamlet, and the station is a flag station only, without telegraph facilities. The station and the post office were on the same side of the railroad track. Between the station and the main track was a siding. Passengers and others having business with the train crossed from the depot to the opposite side of the main track, where a walk of screenings or broken rock was provided. On the morning in question there was another train, called ""first No. 23," which was running on the time of the regular 23; the first being a special train which had no occasion to stop at Mitchellsburg. There were passengers for the local, and a flag had been put out to signal it to stop. It was running as second No. 23, and was some distance behind the first. When decedent heard a train whistle for the station, the signal being given some 500 or 600 yards before the station was reached, he started in a run, or trot, for the station so as to get there before the train did, and to be in position, presumably, to deliver the mail bag. He did not know, we may assume, that No. 23 was being run in two sections. Instead of passing to the west of the depot, which was the public highway crossing, and which would have kept the approaching train in his view (it was going east), he passed on the east side of the station, which was not a public crossing, but which was used sometimes for passage by persons having occasion to cross the track. As he got to the edge of the side track, or upon it, according to some of the evidence, which in either event gave him a clear, unobstructed view of the tracks looking west for perhaps half a mile, he paused, looked toward the approaching train, which was running very fast, and making considerable noise, the exhaust of the applied steam, and other noises such as a heavy rapidly moving train gives forth, he paused an instant, gathered himself together, as some of the witnesses put it, sprang or hastened his speed so as to get across before the train should arrive. At that moment the train was about 200 to 225 feet from him. The width of the side track was about five feet, and the distance between the two tracks about nine feet. Just as he got to the edge of the main track, the end of the pilot of the engine struck him, and he was killed. The speed of the train was from 20 to 40 miles an hour; the evidence varying between those figures.

Appellee based this suit to recover for the death of his intestate upon the negligence of the railroad company in running the special train upon the time of a regular train at a dangerously high rate of speed by the station. And upon that theory he recovered a verdict and judgment. Appellant's main defense was, as it is the principal ground urged for a reversal of the judgment, that the intestate was himself guilty of such negligence as that his estate ought not to recover damages for his death. And that is the only question which we find it necessary to examine. For the purpose of this case it may be conceded that first No. 23 was running by Mitchellsburg station at a speed, considered with reference to the rights of passengers and licensees at the station, that was negligent. It may also be conceded that the intestate was a licensee at the station on that occasion, and even in the use of the way of crossing which he used. It is also conceded that nothing could have been done by those in charge of the train to stop it after the intestate was discovered to be in peril. There is no conflict in the evidence, except as to the speed of the train, and that in testing whether the peremptory instruction should have been given we assume to be as stated by appellee's witnesses. There were at least four eyewitnesses to the accident. They all agree in their statements in all material points. They were people who were sitting or standing about in the vicinity of the station. They heard the train give the customary signals. They heard it coming, and those who noticed the fact (and at least two or three did) say it was making the noise of a train running very fast. They saw the intestate start with the mail pouch, were aware by his movements of his intention to cross the track ahead of the train, and were interested in watching to see whether he made it. They all saw him pause and look as he emerged from behind the depot, and then gather himself as for a spring or sudden movement, and some of them saw him accelerate his speed till he was struck by the train, while others, when they saw his movement indicating he was going to try to cross the track, glanced back towards the approaching train to see what his chances were. It was from the testimony of these latter that we are enabled to locate the distance of the train from the point of contact at the moment the intestate saw it and determined to make the dash to beat it. He had about 20 to 25 feet to go, while the train had about 225 feet.

It is argued for appellee that the intestate mistook the train he saw for the regular mail train No. 23, and thinking it was that train, and knowing that it customarily stopped at the station, thought that it would slow up enough before getting to the station to allow him to pass in safety. The argument is not an unreasonable conjecture; but it is only a conjecture. This train was carrying green signals on the engine pilot, indicating that it was a special. Whether the intestate knew what those flags signified is not shown. The train was running so fast that everybody who saw it and testified, some with the same and none with better facilities than the intestate for judging of that fact, said that it was evident that it was not going to stop. No trains stopped at that station except such as were flagged--that is, signaled by the station flag--and only certain ones were allowed to be flagged. While it may be that the intestate was mistaken as to the character of the train, and was misled into believing it would stop, it may be, on the contrary, that he discovered its true character, and that it would not stop, but thought that he could get across the track before it came by. The latter inference is logically deducible from these circumstances: Every one who saw it saw that it was not going to stop. All who heard it formed the same conclusion, and they were all correct. If it had been regular 23, and had been going to stop, it would not at 225 feet distance have been coming at such high speed, nor emitting steam from the exhaust, as it was slightly downgrade from the west; nor, if it had been apparently going to stop at 225 feet distance, it would not have been necessary for intestate to have sprung forward on a run to cross ahead of it, as its speed in that event would not have been more than twice or three times his speed in a rapid walk, and he would have had ample time to have cleared the track without a sudden and unusual spurt of speed. It may be doubted whether there was evidence that the intestate thought the train was regular 23; but, whether regular 23 or not, it was evident to all observers that it was not going to stop at that station.

Appellee relies on two opinions of this court as supporting the verdict. One is Illinois Central R. R. Co. v. Murphy, 123 Ky. 787, 97 S.W. 729, 11 L. R. A. (N. S.) 352. Murphy's Case is unlike this. Murphy was unaware of the approaching train that struck him, while those on the train for quite a distance saw him, but did not slacken speed.

We held that running the train at high rate of speed through a populous community--a city of more than 2,000 people, the railroad track being along or upon a street--was negligence as to licensees or even trespassers whose presence was known or should, from the circumstances of constant use, have been anticipated. If Murphy had seen the approaching train, and continued upon the track, his case would have been more like this one than it is. The other case cited is Nichols v. Chesapeake, Ohio & S.W. R. R. Co. (Ky.) 2 S. W. 181. It is very near like the case at bar. The similar features are these: Nichols was crossing the main track at a station in a hamlet, when a regular passenger train was due there, and had been flagged to stop for passengers. The location of the depot buildings and tracks were substantially the same as in this case. A special came along on the time of the regular train, but without stopping. It was running very fast. As Nichols attempted to cross the track ahead of it it struck and killed him. Nichols was entitled to the care due a passenger. The points of dissimilarity are these: In Nichols Case the approaching train did not whistle, or give other warning of its coming. Nichols did not see it, or know of its coming. At least, there was some evidence that he did not,...