Louisville & N.R. Co. v. Joshlin

• Decision Date: 19 May 1908
• Parties: LOUISVILLE & N. R. CO. v. JOSHLIN.
• Court: Kentucky Court of Appeals

110 S.W. 382

LOUISVILLE & N. R. CO. v. JOSHLIN.

Court of Appeals of Kentucky.

May 19, 1908

Appeal from Circuit Court, Garrard County.

"Not to be officially reported."

Personal injury action by Alice Joshlin against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Jno. T Shelby, Lewis L. Walker, and Benjamin D. Warfield, for appellant.

Jas. I Hamilton, W. I. Williams, R. H. Tomlinson, and Greene & Van Winkle, for appellee.

SETTLE J.

The appellant complains that appellee was illegally permitted to recover in the court below a verdict and judgment against it for $4,000 damages for injuries to her person, and also for the destruction of her buggy; all resulting, as alleged, from the negligence of appellant's servants in charge of one of its trains in failing to give the statutory and customary signals of its approach, and by running it upon and against appellee, her buggy, and horse at Price's crossing, near the city of Lancaster. Appellant was refused a new trial, and by this appeal seeks a reversal of the judgment complained of.

The appellant's answer specifically denied the acts of negligence alleged in the petition, and averred contributory negligence on the part of appellee, but for which she would not have been injured or her buggy destroyed. The contributory negligence thus charged was denied by reply. According to appellee's evidence she and her daughter, 11 years of age, were, on the day of the accident, driving to their home from Paint Lick in a buggy to which a single horse was attached. They reached Price's crossing at a time when there was no regular train due to pass at that point. It turned out, however, that a passenger train which, when on time, arrived at Lancaster, two miles away, about 1:50 o'clock p.m., was on that occasion between 30 and 40 minutes late. The time on which this train ran being known to appellee, she supposed it had passed the crossing as usual and reached Lancaster on its schedule time, and did not therefore know of its being late. Appellee had the curtains on her buggy, and there was some wind blowing in the direction from which the train was coming, and consequently against the train. The noise made by the wind and the running of the buggy doubtless prevented appellee and her daughter from hearing the noise made by the train. At any rate they drove upon the crossing and track in advance of the approaching train without seeing it, and claimed not to have known of its presence until it struck the buggy, which was broken into pieces, and appellee and her daughter thrown to the ground, but out of the way of the train. The horse, though knocked down in the collision, was not materially injured. Appellee and her daughter both testified that they heard no signal from the train whistle or bell as it approached, or before their buggy was driven upon the crossing, though both admitted that they did not stop or look for a train before going upon the crossing. Appellee was rendered temporarily unconscious by the collision, sustained a serious scalp wound, broken rib, and perhaps some injury to her back. According to the testimony of Wallace, a surveyor who, at appellant's instance, furnished a map showing the crossing and adjacent ground, there was no obstruction in the way of appellee's seeing the train when she was yet far enough from the crossing to have avoided the collision. The engineer and fireman of the train testified that one approaching in a buggy from the east as appellee was could be seen from the engine when the buggy was 80 or 100 feet from the crossing and the engine 250 feet away; that they kept a constant lookout ahead from the time it got in sight of the crossing, which was 250 feet off, until the crossing was reached, and that they first saw appellee when they were in 250 feet of the crossing; that her buggy top was up and the curtains down, and she was whipping the horse with the lines and driving rapidly toward the crossing as if to reach it and get over and beyond the track before it could be reached by the train; and that when they first saw appellee she was at a safe distance from the crossing, and could, if she had looked for and seen the train, have stopped the horse and buggy before reaching the crossing and before it was reached by the train, and thereby prevented her injuries. The engineer and fireman further testified that the train upon arriving at the whistling board, a fourth of a mile from the crossing, sounded the customary whistle signal for the crossing, and that from the whistling board to the crossing the engine bell was continuously rung; that upon seeing appellee, and that she was apparently going upon the crossing in front of the train, the alarm whistle was immediately sounded, and the whistling continued until the crossing was reached by the train; that upon the sounding of the alarm whistle the emergency air brakes were applied and the train stopped at the earliest time possible; that when appellee could be seen, and was first seen from the engine, the train was running at a speed of 30 miles an hour, and by the application of the air brakes its speed was reduced to 12 or 15 miles an hour by the time it struck appellee's buggy; moreover that, in view of the speed at which it was going when appellee was first seen and the air brakes were applied, and the fact that it was downgrade from that point to the crossing, 500 feet was the shortest distance in which it was possible to stop the train, and it was actually stopped within 520 feet, which carried it to a point 270 feet beyond the crossing; and that it was impossible for those in charge of the train to have stopped it, after discovering appellee's peril in time to have prevented the collision. The engineer and fireman were corroborated as to the giving of the signal at the whistling board for the crossing and the alarm signals by Price Floyd, James Smart, Rice and Russell Floyd; the Floyds being near the railroad as the train passed, and Rice, baggage master and Smith, a passenger, on the train. Russell Floyd also said he thought he heard the bell ringing after the crossing signal was given, but was not positive about it. The conductor and flagman of the train also testified as to the several whistle signals and the quick stopping of the train, but neither of them was able to remember as to the ringing of the bell.

The evidence as a whole conduced to prove that for a short distance the public road traveled by appellee in going towards Price's...