Louisville & Nashville R. R. Co. v. Miller

• Decision Date: 06 October 1909
• Citation: 134 Ky. 716
• Court: Kentucky Court of Appeals
• Parties: Louisville & Nashville R. R. Co. v. Miller

134 Ky. 716

Louisville & Nashville R. R. Co. v. Miller

Court of Appeals of Kentucky.

October 6, 1909.

Appeal from Bullitt Circuit Court.

JOHN W. LEWIS, Special Judge.

Judgment for plaintiff, defendant appeals. — Reversed.

CHAPEZE & WADE for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

Lebanon Junction is a town of about 1,400 people, situated at the junction of the Knoxville Branch of the Louisville & Nashville Railroad, with the main line. The Knoxville Branch leaves the main line a short distance north of the passenger depot, which is located between the main line and the Knoxville Branch. Just south of the station the company maintains large coal bins on the east side of the main line. East of the depot and only a few feet from it a track runs through the depot platform, known as the "coal bin track," and used to take cars up to the bins which are elevated something like 40 feet above the level of the station. An engine coming down this track from the bins descends a considerable incline. On the morning of January 14, 1908, about 6 o'clock, John Miller, who worked for the company in the round-house located on the Knoxville Branch east of the station, was going home to his house on the west side of the main line. He worked at night and got off at 6 o'clock in the morning. He came along the Knoxville Branch track until he got opposite the depot, when he started across the platform to the depot. As he stepped upon the coal bin track, he was struck by an engine coming out on the track. Two of his ribs were broken, and one kidney was dislocated, and is now described as a floating kidney. He was also bruised and injured about the head and back. At the time he was struck his attention was attracted to a freight train passing on the main track. He did not look up the incline before stepping on that track. The proof for him tended to show that the engine was running very rapidly; that no lookout was maintained upon it, and no signals of its approach given. The proof for the defendant was, in effect, that the men in charge of the engine were running at a reasonable speed and on the lookout, but that Miller came on the track so close to the engine that they could not see him; that the bell was ringing automatically, and had been so ringing from the time the engine started at the top of the incline. This situation is shown approximately by the followign map; Miller being hurt near the point A.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The defendant moved the court to instruct the jury peremptorily to find for it. The court overruled the motion, and instructed the jury as follows:

"(1) The court instructs the jury that, if they believe from the evidence that the injuries to plaintiff complained of in the petition resulted from or were caused by the negligence of defendant, its agents, servants, or employes operating, managing, and controlling the engine and tender of defendant which struck plaintiff, if he was struck, then they should find for plaintiff such damage as they believe from the evidence will fairly and reasonably compensate him for any physical and mental pain and anguish he has sustained or suffered, if any, or that the jury from the evidence may believe he is reasonably certain to hereafter suffer and for any permanent impairment of his power to earn money, not exceeding $15,000, the amount claimed in the petition. And, if they shall believe from the evidence that plaintiff's injuries and suffering, if any, were the result of gross negligence upon the part of defendant or its said employes, then, in addition to compensatory damages, they may find for him such sum in punitive damages as from all the evidence in the case they may deem proper, not in all to exceed the sum of $15,000 sued for.

"(2) The court instructs the jury that where a railroad track runs through a populous community along or across streets, where from the nature of things persons may reasonably be expected at any time, it is the duty of those in charge of trains or engines to signal by blowing the whistle or ringing the bell, and to so operate them at a speed which has the train or engine under control, and keep such a lookout as will enable the operators to give timely warning of the approach of said trains or engines, as well as to stop them in case of necessity before injury has been inflicted.

"(3) Gross negligence, as used in the instruction, means the absence of slight care.

"(4) By `ordinary care,' as used in these instructions, is meant such care as is usually observed by ordinarily careful persons under the same or similar circumstances as those proven in this case.

"(5) The jury are instructed that plaintiff cannot recover in this case if the injuries to plaintiff set out and complained of in the petition could not have occurred but for plaintiff's own negligence; and, if the jury believe from the evidence that the injuries complained of by plaintiff were caused by and resulted from his own negligence, then they should find for the defendants, unless defendant's agents, servants, and employes operating, managing, and controlling the engine and tender which struck plaintiff, if he was struck, could by ordinary care have known of the peril in which plaintiff's negligence had placed him, and thereafter failed to observe reasonable care to avoid the injuries which ensued to plaintiff, if he was injured.

"(6) The court instructs the jury that it was plaintiff's duty in crossing defendant's track to use ordinary care, and to look out to discover an approaching train or engine; and, if he failed to do so, and was injured in consequence thereof, they should find for defendant, unless defendant's agents operating the train or engine which struck plaintiff, if he was struck, could by ordinary care have known of the peril in which plaintiff's negligence had placed him, if he was negligent, and thereafter failed to observe reasable care...