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

• Decision Date: 25 February 1938
• Parties: LOUISVILLE & N. R. CO. v. MISCHEL'S ADM'X.
• Court: Kentucky Court of Appeals

114 S.W.2d 115

272 Ky. 295

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

Court of Appeals of Kentucky

February 25, 1938

Appeal from Circuit Court, Daviess County.

Action by the administratrix of the estate of Mary Generose Mischel deceased, against the Louisville & Nashville Railroad Company to recover damages for deceased's death as the result of an automobile in which she was riding colliding with a freight car standing across a highway. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Ashby M. Warren, of Louisville, and Thomas E. Sandidge, of Owensboro, for appellant.

Louis I. Igleheart and George S. Wilson, both of Owensboro, for appellee.

MORRIS Commissioner.

Appellee administratrix of the estate of Mary Generose Mischel, was awarded damages in the sum of $7,000 against appellant, on account of the death of her daughter, due as alleged to the negligence of appellant. By petition and amended petition it was alleged that about 2 a. m. December 17, 1935, while riding in an automobile driven by R. D. Payne, the auto collided with a freight car standing directly across highway No. 60, causing intestate's death. The crossing was described as being an infrequently used switch track crossing the highway into properties of the Glenmore distillery. It was said the crossing was dangerous because of "surrounding willow trees, shrubbery and signboards, and a curve in said highway at said point, so as to darken and obstruct the view of the traveler at night, approaching the said crossing. *** All of which endangered the safety of the traveling public."

The petition alleged that it was a dark, foggy night, and there was "no light upon or about the freight car," thus the plaintiff's intestate was unable to see the car standing on the crossing, "which car the defendant grossly and negligently permitted to remain, without giving the driver of the car or his guest any warning or signal with lights or otherwise, so as to warn them of the presence of the car."

It was alleged that the driver and his companion were exercising ordinary care at the time of the accident, and that intestate had no control over the operation of the automobile.

Appellant answering, denied the allegations of the petition and pleaded contributory negligence. Upon a hearing the jury returned a verdict as above stated; motion for a new trial was overruled, and judgment entered, from which this appeal is prosecuted.

At the point where the accident occurred, three switch tracks cross highway No. 60 at right angle, running generally north and south. The main line is a mile south of the crossing, and the Glenmore and Standard Oil plants are on the north side of the highway; one of the properties being east and the other west of the tracks. The right of highway at the point described, and at all points involved, is approximately 68 feet, and the concrete pavement 18 in width. The lines of the distillery property are flush with the highway right of way line. As the highway, going towards Owensboro, approaches the crossing it is straight for more than 1,300 feet. On each side of the highway and switch tracks there was the regulation cross-arm, bearing the words "Railroad Crossing," and on each side of the tracks, and in the highway, were painted white stripes and "R. R." in large letters. At the corner of the Glenmore property, and on the north side of the track, was an electric light of 700 watt power, swung about 10 feet higher than an ordinary box car; this was lighted at the time of the accident. The main entrance to the distillery property was about 600 feet east of the crossing.

Decedent was twenty-two years of age, a graduate of a business college. Payne, the driver of the automobile, was also a student at the business college, and about twenty years of age. It had been a custom of the school to entertain students and alumni with a pre-Christmas party. On the afternoon of December 16, Payne and Miss Mischel had, with others, been engaged in decorating the hall at Rio Vista, a road house where the entertainment was to be held. After completing arrangements, they drove home in Payne's car, and later back to Rio Vista, where they remained until the entertainment was over, about 1:30 a.m. Payne and his companion, with others, decided to and did go to Oriental Inn. The parties remained there, engaged in dancing, not more than fifteen or twenty minutes, whereupon Payne and decedent left in his car, followed shortly by others of the party. Oriental Inn was about 2 miles east of the crossing in question. Payne says that after he left the Inn he drove towards Owensboro at a rate of 25 or 30 miles an hour. As he approached the crossing, there were a lot of willow trees on the Glenmore side of the highway, and on the left, signboards and one or two trees. He testified that approaching the crossing, "if there had been a train up that track on the switch, headed southward, these obstructions would have prevented one from seeing it." The night was dark and foggy and it had been drizzling rain. After he left the Inn, he put on the lower beam of his headlight so he could "see a lot better." He explained that the lower beam threw the light more directly on the surface of the road, but for a distance of 40 feet less than would have been thrown by the upper beam. He said that as he neared the entrance to the distillery property, "The trees made it darker, and it was foggy, and drizzling rain; I took my foot off the accelerator and the car slowed down, probably five miles an hour, and I was very careful as I got close to the train, and I saw the track where the lower beam hit, and I slammed on my brakes and cut to the left; I slowed down some, but it was too late." Further, he said he put on his brake after he discovered the car across the highway, when he was "just about 30 feet away from the car." The "shoving down of the brake slowed the car. The street was moist, and it did not have as good effect as if it had been dry. *** There was no light between me and the box car; it was pitch dark." Asked, "What caused you to run into the car?" he answered: "Because it was so dark and I had my lights on, was driving carefully, and I did not expect a train there. I knew there was a switch there. I never heard anybody say there was a train there, and that puzzled me and I slowed down and shoved on the brakes, but there wasn't any light there at all. There wasn't any light anywhere that I saw."

He said he thought the switch had been abandoned. On cross-examination witness said he thought his brakes slowed him down to about 18 miles an hour; that he was probably 150 feet above the Glenmore entrance when he noticed smoke, which he says he "knows now was from the train, but I didn't know where it was from then." He said he was kept from seeing the train by the smoke around the train, the willow trees, and sign board, none of which obstructions were on the highway right of way. He thought with his dimmers on he could have seen the car at a distance of 50 feet, but not as far as 100 feet.

Payne stated that he struck the car on the left side from him. He explains this by saying that when he was about 30 feet from the car he swerved to the left, thinking it would "help slow down some more." That after he turned to the left he skidded, as he thought, about 15 feet. Payne was dazed by the impact to such an extent that he knew nothing much as to what had happened until the next morning, when he awoke in the hospital. The impact resulted in the instant death of Miss Mischel.

Others of the party who left the Inn and followed Payne's car testified that as they approached the crossing they observed the stop light on Payne's car, and some one remarked, "Dubie didn't get across." This observation was made, and the light observed as witnesses' car passed the main entrance to Glenmore. These parties saw no other light. They say the night was dark and foggy, and one witness said, "Smoke was close to the ground." Another witness said that the smoke was from the train and not the distillery. They also testified as to the presence and position of the trees, shrubbery, and signboard.

A dairyman, who had traveled the road frequently, testified that, "The railroad track makes a little curve there; there is a big coal pile and some willows all along the fence row, and a box car could not be seen if you were coming from the east, and those trees are up high enough to keep from showing the light on Glenmore corner." He also said that there were 550 people at work at Glenmore who "used the crossing," and that Owensboro had a population of 35,000, and a great many trucks pass over this crossing. This witness admitted, as did others who testified as to the trees, shrubbery, and signboards, that the curve mentioned in pleading and proof was more than 1,000 feet from the crossing point, and that for such distance the road was perfectly straight, with nothing in the road to obstruct the view. A witness who had left the Inn, following Payne's car, testified that some one in his car called out, "Look out, there is a train," and stopped in about 30 feet, and very near the car.

The engine foreman, switchman, and brakeman were on the ground west of the crossing, or the right side of the engine and cars. The engine was about six car lengths from the blocking car, or 260 feet south of the crossing. As the cars were being backed in to make the coupling, the foreman was standing in the crossing. One of the employees who was to make the coupling was on the same side, but on the north side of the highway. The other was on the same side of the crossing, but nearer the engine for the purpose of passing signals. The foreman flagged the crossing, and just before the crossing was closed he saw...