Nashville, C. & St. L. Ry. Co. v. Stagner

• Citation: 305 Ky. 717
• Court: United States State Supreme Court (Kentucky)
• Decision Date: 31 October 1947
• Parties: Nashville, C. & St. L. Ry. Co. v. Stagner.

Page 717

305 Ky. 717

Nashville, C. & St. L. Ry. Co. v. Stagner.

Court of Appeals of Kentucky.

October 31, 1947.

1. Railroads. — In railroad crossing collision case, evidence that trucker had unobstructed view of track, that train came into range of trucker's vision when he was 180 feet from crossing, that trucker was looking for train but failed to see it until it struck the truck, and that he was traveling at such low speed that he could have stopped almost instantly established contributory negligence as a matter of law.

2. Railroads. — If cab of truck was so constructed as to obscure view of driver as he approached railroad crossing and if its windows were closed so as to shut out sound, greater diligence upon trucker's part was required.

3. Railroads. — A motorist whose view is obscured or whose hearing is impaired by any condition must exercise care commensurate with the factual situation and proceed with more caution than where he has an unobstructed view.

4. Railroads. — The duty to exercise ordinary care for one's own safety requires that in approaching a railroad track one use his senses in the way that ordinarily prudent persons would under similar circumstances to determine whether it is safe to cross the track at that time.

5. Railroads. — Where the facts make it certain that a traveler could have seen or heard an approaching train in time to avert a collision at crossing had he looked and listened properly, he cannot say that he looked for but did not see, and listened for and did not hear the train.

Appeal from Calloway Circuit Court.

Walton Whitwell and Joe Lancaster for appellant.

Nat Ryan Hughes for appellee.

Before Ira D. Smith, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The appeal is from a judgment for $1,600 for personal injuries and the practical destruction of a truck of the appellee, B.J. Stagner, resulting from a railroad crossing collision. The accident occurred in McKenzie, Tenn., but the trial was had under Kentucky common law in Calloway County, the home of the plaintiff.

Main and Walnut Streets intersect so as to form roughly the letter "X." Appellant's railroad runs east and west and bisects the streets at the intersection. Thus South Main Street is the right leg of the "X" and crosses the railroad diagonally at an angle of about 40 degrees. There is a "V" shaped vacant lot between the street and the railroad. The closest obstruction to the view across the lot is a house on the street 180 feet from the crossing. One traveling northwardly has a clear vision of a train running west to the crossing. It is somewhat difficult to describe the situation but it was clearly shown to the jury and to us by an accurate map and several photographs.

This accident occurred shortly after noon on February 3, 1946. Appellant was driving a loaded truck northwestwardly on South Main Street. The train was composed of three coaches and going west at from 15 to 20 miles per hour, preparatory to stopping at the station, 500 feet away. There is much positive and persuasive evidence that the whistle had blown for the station and then for this crossing and that the locomotive bell was ringing continuously. There is also negative evidence that these signals were not given. The plaintiff was traveling not over 8 miles an hour and could have stopped within one foot, he testified, by the application of his brakes. He was very familiar with the crossing. In answer to a question as to when he first noticed the train, he said, "I heard it running. I kept looking, trying to see it, and just as I saw it, it hit me." His attorney repeated the question in this form, "The first time you saw the train, it struck your truck?" He answered, "Yes." So this is not a mere slip of the tongue but a positive and deliberate statement. The cab windows of the truck were closed. The plaintiff and some other witnesses testified that as one approaches the railroad crossing in a truck cab of this kind, he is not in a position to see a train coming from the east because he approaches at a rather sharp angle, and as the driver is on the left side "he must lean on the far side of the cab and stick his head out of the window to see the train."

The engineer could not see the approaching truck as he was on the...