Louisville & N. R. R. Co. v. Molloy's Admx.

• Decision Date: 02 March 1906
• Parties: Louisville & N. Railroad Co. v. Molloy's Admx.
• Court: Kentucky Court of Appeals

122 Ky. 219

Louisville & N. Railroad Co. v. Molloy's Admx.

Court of Appeals of Kentucky.

March 2, 1906.

Appeal from Barren Circuit Court.

SAMUEL E. JONES, Circuit Judge.

Judgment for plaintiff. Defendant appeals. Reversed.

B. D. WARFIELD W. A. NORTHCUTT and J. A. MITCHELL for appellant.

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THOMAS W. THOMAS for appellee.

GREER and MARBLE, BAIRD and RICHARDSON and R. C. P. THOMAS of counsel.

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OPINION OF CHIEF JUSTICE HOBSON.—Reversing.

On Sunday, March 27, 1904, Sam C. Molloy, an attorney, on his way to Brownsville to attend court on the next day, reached Glasgow Junction on the morning train, and hired L. H. Oller, a livery stable man, to take him over to Brownsville in a buggy. They got in the buggy about 12 o'clock, and started to Brownsville. From the hotel from which they started the road to Brownsville runs for about a quarter of a mile parallel with the Louisville & Nashville Railroad, and at this point it abruptly turns to the right, going up a slight incline across the railroad track. Just as the horses reached the track, a freight train going south, running rapidly, struck the buggy, killing Molloy and seriously hurting Oller. This suit was filed by Molloy's administratrix to recover damages for his death, and, verdict and judgment having been rendered in her favor for $9,000, the railroad company appeals.

Glasgow Junction is a town of 250 inhabitants. The crossing in question, though within the town boundary as established by the Legislature, is outside the builtup portion of the town. The crossing is 1,200 feet from the station; it is 438 feet from the railroad section house, and 490 feet from the next nearest house. Five thousand one hundred and seventy feet north of the crossing is a tunnel. When the train in question came out of the tunnel, the engineer blew the usual station signal, one blast of the whistle. The conductor gave him what is called the high-ball; that is, an order to go ahead. He recognized the signal by two blasts of the whistle. Soon after this the engineer blew four blasts for the semaphore, which is controlled by the agent at the station, and, the semaphore being turned, responded by two blasts of the whistle in recognition of the signal. After this, and before he reached the station, he blew the usual signal for the road crossing north of the station and 600 or 700 yards from the crossing in question. After passing this crossing, according to the plaintiff's proof, the engineer did not blow his whistle or ring the bell or give any signal of the approach of the train to the crossing where Molloy was killed, until he was within a short distance of it. The train was a heavy freight, running about 30 miles an hour. The proof of the plaintiff also showed that the engineer, after passing the station, instead of keeping a lookout on the track in front of him, turned to wave a signal to a lady who lived on the side of the road, and was looking at her until shortly before the collision. On the other hand, the proof is that Oller left the hotel with Molloy in the buggy in a brisk trot, and that the train came along at just about the time it would take them to get to the crossing. In going along the pike the view of the train coming from the north would be obstructed until the parties turned to go upon the railroad and got within 30 or 40 feet of the center of the track. After this the train could be seen by the occupants of the buggy, and the engineer of the train might have seen the team approaching the track. The engineer testified that the first he saw of the team was the head of the horses as they came out from behind the obstruction, when he was about 100 feet from them. He admitted waving to the lady, but said he had turned around to his position some little time before the horses came in sight; that as soon as he saw them he gave the alarm, and put on the brakes, but that before the train could be checked it had run far past the crossing. The proof for the defendant also showed that the whistle was blown for this crossing, and that the bell was ringing as the train approached. Just where the road turns to go up to the railroad there is a swag. The defendant showed by several witnesses that, when the occupants of the buggy were about 40 feet from the crossing they were looking toward the train which they could see coming; that the man on the left-hand side of the buggy then struck the horses with the whip and rushed them on the track, where they wheeled quickly to the left just as the train came up, killing the horse next to the train, and killing Molloy, who was on that side of the buggy. That the train whistled a number of times as it approached the station is testified to by all the witnesses, both for the plaintiff and the defendant, and these whistles were heard by persons much further from the train than the occupants of the buggy. A number of matters are relied on for reversal.

The defendant asked a continuance on the ground of the absence of Ellis Ford. An order had been made for the personal attendance of Ford at the trial, but the court properly refused to continue the case allowing the affidavit to be read as his deposition. There was nothing in his testimony as given in the affidavit to show that the proper effect of his testimony could not be had without the presence of the witness. He was absent from the State, and no subpœna had been served on him.

The evidence was sufficient to justify the submission of the case to the jury, and the court properly refused to give to the jury a peremptory instruction to find for the defendant. There was also some evidence of gross negligence, and the court did not err in submitting this question to the jury.

We see no substantial objection to the second, fifth, sixth and seventh instructions.

The third, fourth and eighth instructions are as follows:

"(3) The court instructs the jury that it was the duty of the defendant's agents and servants in charge of its freight trains, in running same, to use ordinary care to prevent collisions with and injury to persons traveling the public highway where it crosses defendant's railroad track at the place of the collision with said Sam C. Molloy, by beginning the giving of reasonably sufficient signals for said crossing at a reasonably sufficient distance from said crossing when approaching same, and continuously, or at intervals, repeating said signals until the engine of said train reached said public highway crossing, in a reasonably sufficient manner to warn persons about to cross said railroad track upon said highway of the approach of said trains, and by keeping a lookout in approaching said public highway crossing for persons traveling upon said highway using or about to use said public highway crossing, and by approaching said crossing at such rate of speed as was reasonably consistent with the safety of persons traveling upon said highway and using or about to use said crossing, considering the character of the crossing, its surroundings and its use by the traveling public. And if the jury believe from the evidence in this case that on the occasion in controversy the defendant's agents and servants in charge of said trains did negligently fail in approaching said crossing to give such signals, or to keep such lookout or to use such rate of speed, and shall further believe from the evidence that said Sam C. Molloy was injured and killed by reason of such negligent failure, if any, of defendant's said agents and servants to give said signals, or keep said lookout, or use said rate of speed, they shall find for plaintiff.

"(4) The court further instructs the jury that it was the duty of the engineer and fireman or other trainmen in charge of the engine of said train to keep a lookout in approaching said crossing to prevent injury to those traveling upon the highway over said crossing, and although the jury may believe from the evidence that said Molloy was himself negligent in attempting to pass over said crossing in front of said train and thereby contributed to his injury and death. If the jury further believe from the evidence that defendant's aforesaid agents and servants in charge of said train and engine knew, or by the use of ordinary care could have known, of the peril of said Sam C. Molloy in time to have prevented the injury to him, by the use of ordinary care, they should find for plaintiff and fix damages according to instructions Nos. 1 and 2."

"(8) The court instructs the jury that, if they shall believe from the evidence that the decedent, Sam C. Molloy, was placed in imminent danger by the negligence of the defendant, its agents, servants, or employes, on the occasion under investigation, then he had a right to use any means that appeared to him under the circumstances to be reasonably necessary to avoid such danger, if there was such danger, and, if the decedent, while using such means as then appeared to him to be reasonably necessary to avoid such danger, was injured and killed, still he was not guilty of contributory negligence, and the jury will so find."

The third instruction is erroneous, in requiring that the train should approach the crossing at such a rate of speed as was reasonably consistent with the safety of persons traveling upon the highway. The rule that the speed of trains must be moderated applies to cities and towns where the population is dense and the presence of persons may be anticipated on the track at crossings, but it does not apply to highway crossings in the country. While this crossing was within the corporate limits of the town, it was practically a country crossing. The rule is that at ordinary highway crossings in the country no rate of speed is negligent, but that, where the speed of the train is great, care in...