Louisville & N.R. Co. v. Wilson

• Decision Date: 06 March 1907
• Parties: LOUISVILLE & N. R. CO. v. WILSON.
• Court: Kentucky Court of Appeals

100 S.W. 302

124 Ky. 836

LOUISVILLE & N. R. CO. v. WILSON.

Court of Appeals of Kentucky.

March 6, 1907

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

"To be officially reported."

Action by Carl Wilson against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Helm &amp Helm, Benjamin D. Warfield, and H. L. Stone, for appellant.

Jacob Solinger and D. W. Baird, for appellee.

HOBSON J.

The tracks of the Louisville & Nashville Railroad Company leading from the south into Louisville cross diagonally Seventh street at and a little north of its intersection with Magnolia avenue. There are gates maintained by the company on both sides of the crossing. Seventh street at this point is a much traveled city highway; perhaps the most traveled highway leading into the city from the country. On the 11th of November, 1905, about 6 p. m. Carl Wilson, then 18 years of age, who lived south of the crossing, went up Seventh street past the crossing, about 100 yards, to a boot-black stand where he had his shoes shined, intending to go to a party. He then returned along Seventh street until he reached the gate at the crossing, where he found a freight train passing and the gates down. There are three tracks at this point. The freight train was passing on the east track. As soon as the freight passed the gates were raised, and he started across, passing close to the rear end of the freight which was going south. Just as he reached the next track he was struck by a north-bound passenger train on that track moving rapidly. He was not aware of the coming of the passenger train, and apparently did not know what had struck him. His arm was so broken by the collision as to require amputation near the shoulder, and he sustained a serious injury to his head as well as bruises on his body. He brought this suit to recover damages. The case was tried in the circuit court, resulting in a verdict and judgment for him for $2,250, and the railroad company appeals.

The above is a statement of the facts as shown by the proof for the plaintiff; three or four persons in the vicinity testifying that the accident occurred as related above. On the other hand, the proof for the railroad company is that the gates were not raised, that there was no freight train going south on the east track, and that Wilson swung off of a freight train passing along the west track and was struck by the passenger train on the other track just after he reached the ground.

The court, among other things, instructed the jury as follows:

"(1) The court instructs the jury that it was the duty of the defendant, Louisville & Nashville Railroad Company, at the intersection of its tracks with Seventh and Magnolia streets to lower the gates which it maintained at said intersection on the approach of a train, so as to give to those attempting to use the crossing a reasonable opportunity to avoid injury from the train, and, if the jury believe from the evidence that at the time and place complained of by the plaintiff, Carl Wilson, the defendant negligently failed to discharge this duty, and that the plaintiff was injured thereby while attempting to cross said intersection, and that the plaintiff was not at said time and place himself guilty of contributory negligence, but for which he would not have been injured, then the law is for the plaintiff, and the jury shall so find.

(2) If the jury believe from the evidence that the defendant discharged the duty incumbent upon it as laid down in instruction 1, or if they believe from the evidence that the plaintiff was not injured while attempting to cross over the intersection, or if they believe from the evidence that the plaintiff was himself guilty of contributory negligence, but for which he would not have been injured, then the law is for the defendant, and the jury shall so find."

"(4) By the term 'contributory negligence,' as used in these instructions, is meant a failure on the part of the plaintiff to use ordinary care for his own protection and safety, under the facts and circumstances in evidence preceding and attending his injury; and in this connection the court instructs the jury that, if they believe from the evidence that the gates were raised or were up at the time the plaintiff entered upon the intersection for the purpose of crossing it, then this circumstance was an invitation on the part of the defendant to the plaintiff and the public to cross, and an assurance that the track could be crossed in safety, and the plaintiff cannot be found guilty of contributory negligence in attempting to make the said crossing unless the jury believe from the evidence that he failed to use ordinary care for his own safety and protection under these circumstances; but, if the jury believe that the gates were raised or were up at the said time and the plaintiff did fail under the circumstances to use ordinary care, or if...