Norfolk & W. Ry. Co. v. Barney
| Decision Date | 21 January 1936 |
| Citation | 90 S.W.2d 14,262 Ky. 228 |
| Parties | NORFOLK & W. RY. CO. v. BARNEY. SAME v. BETTERTON COFFEE CO. |
| Court | Kentucky Court of Appeals |
Appeals from Circuit Court, Pike County.
Actions by George H. Barney, and by the Betterson Coffee Company against the Norfolk & Western Railway Company. Judgment for plaintiff in each case, and defendant appeals.
Judgment in each case reversed.
F. M Rivinus, of Roanoke, Va., O. T. Hinton, of Pikeville, and Homer E. Holt, of Huntington, W. Va., for appellant.
Lewright Browning, of Ashland, and J.J. Moore, of Pikeville, for appellees.
STANLEY Commissioner.
About 8 o'clock in the evening of February 9, 1932, an automobile driven by the appellee George H. Barney collided with the appellant's locomotive at a grade crossing in Kenova W.Va. On a joint trial, he recovered a judgment of the appellant for $1,600 for personal injuries sustained, and the appellee Betterton Coffee Company, owner of the automobile recovered judgment for $250 for damages to it. Appeals have been prosecuted from those judgments and are disposed of in one opinion.
Sixteenth street, which is a part of the United States Highway No. 60, runs east and west, and a short distance east of the entrance to the bridge across the Big Sandy river to Catlettsburg, Ky. is intersected by appellant's belt line or switch serving several industries north of the highway. About 200 feet east of the crossing, the street slightly turns. About 100 feet away it widens and divides, another street diverging in a southwesterly direction. In the fork of the "Y" thus formed was a large electric sign, and a gasoline filling station also well lighted. The street had a series of lights on standards on each side of it. The highway bridge also had numerous similar lights. Off on the north side of the street is an embankment 8 or 10 feet high, but gradually declining and becoming level about 100 feet east of the railroad crossing. From that point, there is a free and unobstructed view of the railroad track on the north, so that a traveler can clearly see a train 400 feet or more as he approaches the crossing. The highway was very heavily traveled, while the use of the railroad switch track was infrequent.
Barney was traveling west, and a locomotive and six cars were running south. Barney testified that he was driving about 20 miles an hour and keeping a lookout ahead and on either side as he approached the crossing with which he was familiar. His car windows were closed and its lights dimmed or focused downward. He did not hear any signal or warning and did not see the train until just as the engine loomed up in front of him about 15 feet away. He applied his brakes, which were in good condition, but struck the engine about the cylinder while it was moving, he thinks. He was knocked unconscious and knew nothing further until several hours later, when he came to in the hospital. A witness located the point of collision as near the center of the street from the appearance of the markings thereon. The engine was stopped before it completely crossed over the street. Barney testified that the numerous lights in front and to his side caused reflections and "blind spots." Counsel suggests that the condition was something like where one is in a brightly lighted room and is endeavoring to see into the outer darkness. It was conclusively shown, however, that the headlight of the engine was burning, so the situation is not exactly analogous, for the engine light must have been conspicuous in the darkness and the topography and situation were such that one observing ordinary care was bound to have seen it unless the engine was at the immediate edge of the street so that its light shown across and ahead of the traveler.
One of the specific acts of negligence relied on and submitted to the jury was the defendant's failure to give proper signals of the approach of the train. The trainmen, a policeman, and two other disinterested witnesses testify that the train was moving at a speed of from 3 to 5 miles an hour and that the usual crossing whistle was sounded when it was three or four car lengths north of the street crossing. Also, that about the time it entered the intersection there were two short blasts of the whistle, which was in accordance with custom. The fireman saw the automobile coming, perhaps 80 feet away, but he expected it would stop, as there was sufficient time and space for it to do so. However, he called a caution signal (indicating a possibility of danger) as the locomotive went upon the crossing. The engineer shut the throttle and after proceeding a little way, upon another signal from the fireman, he stopped the train within 4 feet. The bell was ringing continuously from the time the whistle was first blown.
We have only the negative testimony of the plaintiff that he did not see the headlight or hear the signals. He does not undertake to say they were not given. It may well be accepted that his failure to see and hear was due to the multiplicity of lights (for which the defendant was not responsible; see Public Service Co. of Ind. v. Schneider's Adm'r, 260 Ky. 334, 85 S.W.2d 676) and his closed windows. The defendant proved that the plaintiff approached the crossing at a speed of from 30 to 40 miles an hour, and that an automobile of similar kind by test could be stopped in 14 feet when running 20 miles an hour, and in 45 feet when running 35 miles an hour.
The trial was held, and our decision must rest upon West Virginia law as pleaded and proved. Stewart's Adm'x v Bacon, 253 Ky. 748, 70 S.W.2d 522. A statute of that state (section 3104, West Virginia Code) requires that a locomotive bell or whistle shall be rung or blown at a distance of at least 60 rods from a street or highway crossing, and be kept ringing or whistling for a time sufficient to give due notice of the approach of the train. A failure to observe such provisions makes the railway company responsible for damages sustained by reason of such negligence. In the instant case, the train started from a point about 800 feet away, so there could have been no literal compliance with the law requiring the signals to begin 60 rods, or 990 feet, away without backing up and then coming forward. That was, of course, not required; the purpose of the statute as therein expressed being that the signals should be given "for a time sufficient to give due notice of the approach of such train before such street or highway is reached." Bowles v. Chesapeake & O. R. Co., 61 W.Va. 272, 57 S.E. 131; Coil's Adm'x v. C., St. L. & N. O. R. Co., 232 Ky. 33, 22 S.W.2d 428; Central Texas & N.W. Ry. Co. v. Nycum (Tex.Civ.App.) 34 S.W. 460. It is admitted that the signals were not begun until the train was within three or four car lengths of the crossing, which would be about 150 feet. Taking the engine's speed of 4 miles an hour and the automobile's speed of 20 miles an hour (the plaintiff's evidence), it was about 750 feet from the crossing when the whistle first sounded. This, obviously, was sufficient warning under the circumstances, and the blowing of the whistle sooner would have served no purpose. Indeed, Barney had stopped for a street light a block away. Coil's Adm'x v. C., St. L. & N. O. R. Co., supra. There remains in the case on this aspect of negligence in the matter of audible signals only the evidence of the plaintiff that he heard nothing. We pass over the question whether under the West Virginia law this was sufficient to carry the question to the jury; also, the contention that the...
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