Louisville & N. R. R. Co. v. Howerton

• Decision Date: 06 March 1903
• Citation: 115 Ky. 89
• Parties: Louisville & N. R. R. Co. v. Howerton.
• Court: Kentucky Court of Appeals

115 Ky. 89

Louisville & N. R. R. Co. v. Howerton.

Court of Appeals of Kentucky.

March 6, 1903.

APPEAL FROM SHELBY CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED.

WILLIS & WILLIS, ATTORNEYS FOR APPELLANT

P. J. BEARD, R. F. PEAK, AND GILBERT, PEAK & GILBERT, FOR APPELLEE.

OPINION OF THE COURT BY JUDGE PAYNTER — REVERSING.

About four miles south of Shelbyville the appellant's track crosses at right angles the public road, forming what is known as the "Keene Crossing." To the right of the crossing, in going from Shelbyville, there is a deep cut. The appellee and her daughter were driving a horse, proven to be gentle, from Shelbyville to their home, over the highway in question. As they approached the crossing, and as the horse's fore feet were over the first rail, it became frightened, swerved to the left, and ran off, which resulted in the appellee being painfully injured. It is claimed that the horse became frightened because the servants and employes of the appellant operated a hand car with gross negligence and carelessness. The plaintiff did not see the hand car, but, as the horse lunged, her daughter discovered the hand car, which was about 50 or 60 feet away, approaching the crossing through the cut. There was not the slightest evidence introduced which tended to prove that the hand car was operated in an unusual way, or that it was making any unusual noise or sounds. The mere fact that the horse became frightened at the hand car, ran off, and injured the appellee, does not entitle her to maintain this action. She could only maintain it upon the ground that defendant's servants or employes were guilty of negligence resulting in the injury. Hand cars are necessary in the conduct of the business of railroads. They must be used for the purpose of carrying tools and the section forces from point to point in repairing and looking after the track. It is impossible to run them in a noiseless manner. The fact that they are run, and that a horse became frightened by reason of their approach, or the noise which they make, which results in injury to the driver, does not give a cause of action. When trains are run in the ordinary way, and whistles and bells are sounded as the necessities of the business require, and a horse becomes frightened by reason thereof, and damages result therefrom, no action can be maintained therefor. Ohio Valley R. R. Co.'s Receiver v. Young (19 R., 158), 39 S. W., 415. Elliott on Railroads, volume 3, ...