Paducah & Memphis R. R. Co. v. Hoehl
| Decision Date | 16 March 1876 |
| Citation | 75 Ky. 41 |
| Court | Kentucky Court of Appeals |
| Parties | Paducah & Memphis R. R. Co. v. Hoehl. |
APPEAL FROM MARSHALL CIRCUIT COURT.
J. C. GILBERT, W. W. TICE, J. M. BIGGER, For Appellant.
R. K. WILLIAMS, ED. CROSSLAND, For Appellee.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
Mary Hoehl, an infant twelve years of age, instituted this action, by her next friend, against the Paducah & Memphis Railroad Company to recover damages for the negligence of its employees in running its train, by which the cars of the company ran over the plaintiff, crushing one of her legs, rendering amputation necessary, and inflicting upon her other great bodily injuries. A verdict and judgment were rendered against the company for $11,000, from which this appeal is prosecuted.
It appears, from the evidence, that the appellee lived with her parents in the town of Mayfield, and that the line of the railroad ran through a part of the town. The father of the appellee lived on the west side of the track, in what is called Boxtown, and kept a shop on the east side. The schools and business houses of the town are located on the east side of the track, and those living on the west side, or in Boxtown, were in the habit of crossing the track of the road to reach the business part of the town at the point where the accident happened, which, as the proof conduces to show, was the principal crossing.
The appellee, in returning from school in the east part of the town, and when on her way home, reached the crossing, but found the way blocked by a freight-train on the track. She was advised by some one not to attempt to cross until this train moved off; and the train leaving in a few moments, in the attempt to cross the main track she was struck by the cow-catcher of a train or engine following immediately after the train that had just left, and so seriously injured that one of her legs had to be amputated. This last engine was on the track, a distance of seventy-five yards from the freight-train, and awaiting its departure before it moved off.
At the time the first train left she was standing in the center of the side-track, and the distance from that point to the main track, where the injury occurred, was only a few feet. The proof tends to show that she could not see, from the point where she was standing, that another engine was on the track, by reason of some cars that stood on the side-track and obstructed the view. It also appears that the engine inflicting the injury was moving at about four or five miles an hour, and that the appellee was not seen by any of the employees on the train until she was in the act of stepping on the main track and within seven or eight feet of the approaching engine. There is some conflict in the testimony as to whether any signal was given at the time this engine began to move from its place on the track after the freight-train had departed. The appellee had on at the time her mother's sun-bonnet, and says she did not look to see whether there was a train approaching or not.
The court below, at the instance of counsel for the appellee, instructed the jury in substance, "That if the appellee, when attempting to cross the defendant's railroad at the usual crossing for foot-passengers, was prevented from seeing the train or engine by which she was injured on account of the cars standing upon the side-track, then it was the duty of the managers of the train, by blowing its whistle or continuously ringing its bell until they passed the crossing, to give notice of the approach of the train, and if they failed to do so it was negligence on their part, and such as rendered them liable for the injuries to the plaintiff," etc.
It was incumbent on the part of the appellee to show negligence on the part of the company or its employees in order to recover; but the fact that some of the cars of the appellant stood upon the side-track and obstructed the view of the road was no evidence of neglect; nor was the latter required, by reason of this fact, to exercise a greater degree of diligence to prevent injury to others. The cars on the side-track were stationed where the appellant had the right to place them, and it was the duty of those attempting to cross the track to place themselves in a position where they might see the approaching trains. Still it devolved on the appellant to give sufficient signals of the approach of its trains to such a public crossing as this is shown to have been where the injury occurred. This may be done by blowing the whistle, ringing the bell, or by some other signal sufficient to give the proper warning of the train's approach. There is no statute in this state designating the character of signal necessary to be given, and therefore the appellant must give such signals as are usual and customary in such cases and necessary to give warning of the coming train; and there can be no doubt but that greater caution must be used in moving a train of cars through a town or to a crossing within the town than would be required to be exercised in approaching the ordinary crossings in the country. The failure, therefore, to give such a signal as will be sufficient to apprise those who are at or near such public crossings of the approach of the train must be regarded as negligence. Whether the proper signals were given in this case, or the necessary precautions used by the company at the time the accident occurred to prevent injury, is a question of fact to be determined by the jury.
It was error on the part of the court below to authorize a finding because the company failed to ring its bell or blow its whistle continuously until it passed the crossing. If sufficient signals were given to notify those about to cross of the approach of the train, such as were usual and customary, and that persons exercising ordinary prudence and care would have regarded, it is all that can be required of the company. (Shearman & Redfield on Negligence, page 538.)
If the testimony introduced by the appellee has established negligence on the part of the company, a question we do not determine, and it further appears that there was negligence on her part contributing to the injury, and but for which the accident could not have happened, she was not entitled to a verdict.
The appellee is shown to have been a sprightly, intelligent girl. She lived near the depot, and was familiar with the movements of trains, and must have been aware of the necessity...
To continue reading
Request your trial