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

• Citation: 85 S.W.2d 1006,260 Ky. 380
• Parties: LOUISVILLE & N. R. CO. et al. v. RATLIFF'S ADM'R.
• Decision Date: 21 June 1935
• Court: Court of Appeals of Kentucky

85 S.W.2d 1006

260 Ky. 380

LOUISVILLE & N. R. CO. et al. v. RATLIFF'S ADM'R.

Court of Appeals of Kentucky

June 21, 1935

As Modified on Denial of Rehearing Oct. 1, 1935.

Appeal from Circuit Court, Letcher County.

Action by Bee Ratliff's Administrator against the Louisville &amp Nashville Railroad Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Ashby M. Warren, of Louisville, C. S. Landrum, of Lexington, and D I. Day, of Whitesburg, for appellants.

E. J Picklesimer, W. K. Steele, and W. L. Bolling, all of Pikeville, for appellee.

RICHARDSON Justice.

We are required to review a trial to a jury in an action of Bee Ratliff's administrator against the Louisville & Nashville Railroad Company, for the death of Ratliff, and the destruction of his truck, occurring on April 5, 1932, caused by a collision between the loaded truck which he was operating, and a freight train of the latter. The trial resulted in a verdict in favor of his estate for $7,000 for his death, and $500 for the destruction of the truck.

The railroad company is here insisting that Ratliff was contributorily negligent as a matter of law, and a peremptory instruction should have been given directing a verdict in its favor, but if it is not entitled to a reversal on this ground, his contributory negligence is so preponderantly established as to render the jury's verdict flagrantly against the evidence. Also, it complains of the given instructions and the action of the court in refusing offered instructions.

The basis of the estate of Ratliff's cause of action is, that "the whistle of the defendant's train was not sounded, or the bell rung, at a distance of at least fifty rods from the crossing *** continuously or alternately" "until the engine reached the crossing"; that by reason thereof "the truck was struck" by the defendant's train at the crossing, instantly killing him.

The railroad company's defenses are a traverse and a plea of contributory negligence which is controverted by a reply. The railroad company's right to a reversal must be determined on the facts adduced.

The collision occurred about 3:40 p. m. "The decedent could have seen the train at any point between the crossing and the cut, 360 feet therefrom." Driving the truck, he approached the crossing from the south to the point from which he could see the train 360 feet from the crossing; "295 feet from the crossing, the decedent passed a standard crossing sign, erected by the State Highway Commission, and 175 feet from the crossing a curve sign indicating a sharp curve in the highway just after it crossed the railroad, as well as the standard crossing sign 12 feet from the crossing." The freight train came from the east on Potter's fork branch. "The engine was backed up, pushing the caboose ahead of it. Behind the engine was five cars of coal picked up at Haymond, about 1 1/4 to 1 1/2 miles of the crossing." The witnesses do not agree on the rate of speed at which either the train or the truck was traveling. The train had to stop for the derail to be thrown, "543 feet from the crossing"; "the switch connection being only about 750 feet from the crossing." "On the platform of the caboose, keeping a lookout," were Brakemen Smith and Blair. The engineer and fireman were at the place of the performance of their duties in the operation of the train. There were "two ways to ring the bell"; the fireman "with the rope," and "the engineer throwing on the air brake." The bell when set to ringing by the air brake did so automatically.

Bryant Holcomb, the fireman, testified that "the bell had been ringing all along at all these crossings up and down through there just like others do," and as the train approached the crossing, the engineer "had hold of the lever blowing the whistle, then I looked over at him, happened to look at him and he was standing with his back toward the outside of the cab and pulling down on the lever and pulled down stronger, had it wide open and just let loose of that, standing with his back toward the truck and his hand come from the lever and threw on the emergency."

Hugh Strunk, a brakeman, testified that he was on the caboose next to the engine which was backing up. He "jerked the angle cock open, but the engineer had done got all the air"; "he had pulled the crossing signal whistle"; "two brakemen on the platform were blowing the back-up whistle"; "an air whistle."

Polkie Smith, a brakeman, "was on the caboose on the outside platform." He testified: "I was using a whistle, sounding the whistle, the air whistle." The engine whistle sounded on that occasion as it approached the crossing, and "blowed the regular road crossing signal." It did so, "back a piece from the crossing, and on down to the crossing."

Otis Mackey, the engineer, stated that "coming down there, there is a highway crossing there, and back about the usual distance, or proper distance, I started sounding the whistle and continued to sound it until *** the only time I quit sounding it was when I turned it loose and grabbed the emergency and applied it." "I commenced sounding the whistle around twenty car lengths up the branch, before I got to the crossing"; the average length of a car was around forty feet. He claims "the bell was ringing after the accident happened"; he went back and "shut it off after the accident." "It was turned on before the accident happened"; it began ringing about the time the whistle began to blow. He used this language: "I saw the truck come around the curve down onto the straight part of the highway and when he commenced getting a little closer here on the last sound of the whistle I pulled down a little louder thinking he was going to drive up and stop and the caboose got the crossing about halfway filled and looked to me like he tried to drive around the end of the caboose." He claims that at that time the train was traveling at the rate of about ten miles an hour and the truck "running about three times as fast."

Milton Hall was in an automobile which was setting on the bridge at the crossing, near where the collision occurred. He departed from Jenkins about the time the train left and reached the railroad crossing a few minutes before the accident. His statement is: "I couldn't tell the speed of the truck changed any, the truck, when I first noticed the truck, that is after the truck, after he acted like he aimed to try to stop from the way he was weaving backwards and forwards"; "looked the way the truck acted that the man was trying to stop it, when it was about 200 or 300 feet when it first came around the curve." "I couldn't say whether the speed increased after I saw the train come, and try to stop it was so quick from that time until the train hit him that a man couldn't tell." "They were tooting the whistle, all the way down the road, the road as I come down; that is, down between up there when I could see it, I lost sight of the train for a little ways above the crossing."

A. G. Gilley, a coal loader, testified: "The train picked up speed from about that rock cut all the way down to the crossing best I could tell," "near to the grade crossing."

Henry Quillen claimed that he heard "the train whistle" and "the crash all about the same time."

Preston Bentley heard the whistle before he heard the crash; "several blasts of the whistle."

Laura Bentley first heard the train whistle "four times for the road crossing"; "then whistled the distress whistle"; "then heard the crash."

Clyde Bentley heard the train blow four times for the crossing; "heard the distress whistle at the crossing."

Charlie Riggs, while "playing marbles," "heard the train blow."

Rhoda Venters stepped out on a porch to her home, "when the train was coming down and blowing"; she watched it until it came around some buildings, when she turned and walked into the house.

Charlie Speaks said: "As that train approached that crossing I heard the whistle."

Louis Minkey heard the whistle blowing "some piece above the garage"; it "blowed until it passed the garage." The crossing is some 200 or 300 feet from the garage.

Contrary evidence, relating to the ringing the bell and blowing the whistle, is the testimony of Jesse Cooley. At the time the train was approaching the crossing and at the time of the collision, he was about 50 yards away. He heard "the bell ring but one time." "It was not ringing before nor at the time of the collision."

Stanley Cooley was walking by the side of Jesse Cooley. He approximated the distance he and Jesse Cooley were from the crossing at 100 feet. He testified he did not hear the whistle or the bell ring. He saw the collision. He did not hear the noise of the train until Jesse Cooley stated to him he heard the train whistle; and after his attention was called to the fact the train was coming, it did not thereafter blow the whistle nor ring the bell.

Ora Sanders was near the accident in company with Eva Edens and Emma White. Before the collision she heard "a rumbling noise of the train"; "did not hear it blow the whistle nor ring the bell."

Eva Edens stated the train made no noise "other than the rumbling of the train on the track." It did not blow the whistle nor ring the bell.

Emma White was unable to say whether the whistle blew or the bell rang. Her words are: "I could not say, I don't remember that I did."

This tedious résumé of the evidence bearing on the decisive pivotal issue shows that it is conflicting, though numerically the weight thereof is in favor of the railroad company.

One witness in behalf of the estate testifies the train whistle blew one time; two of them, that the whistle did not blow nor the bell ring after their attention was called to its presence. The other witnesses of the...