Payne v. Barnette's Adm'r

• Decision Date: 17 November 1922
• Citation: 244 S.W. 896,196 Ky. 489
• Parties: PAYNE, AGENT, ETC., ET AL. v. BARNETTE'S ADM'R.
• Court: Kentucky Court of Appeals

244 S.W. 896

196 Ky. 489

PAYNE, AGENT, ETC., ET AL. v. BARNETTE'S ADM'R.

Court of Appeals of Kentucky.

November 17, 1922

Appeal from Circuit Court, Lincoln County.

Action by George B. Barnette's administrator against John Barton Payne, as agent, etc., and another. Judgment for plaintiff and defendants appeal. Reversed, with directions.

K. S Alcorn, of Stanford, and John Galvin, of Cincinnati, Ohio for appellants.

L. L Walker, of Lancaster, C. C. Bagby, of Danville, J. S. Owsley, of Stanford, and John D. Carroll, of Frankfort, for appellee.

CLARKE J.

On January 9, 1920, George B. Barnette was riding in an automobile driven by Carlton Elkin. As they were crossing the tracks of the Cincinnati, New Orleans & Texas-Pacific Railroad near Hustonville in Lincoln county, Ky. the automobile was struck by a passenger train and Barnette was killed.

In this action by his administrator against the Director General of Railroads and the train engineer, the plaintiff recovered a judgment for $20,000 damages, and the defendants have appealed.

A reversal of the judgment is asked because (1) the court refused to direct a verdict for defendants, (2) the verdict is not supported by the evidence, (3) error in the instructions given, and (4) the verdict is excessive.

1. In support of the contention for a directed verdict, it is insisted the decedent was guilty of contributory negligence as matter of law. Elkin had invited Barnette to ride with him from Danville to Hustonville. Both were sitting on the front seat of the automobile; the former at the wheel on the left, and the latter on the right side thereof. At the public crossing where the accident occurred, the railroad is double-tracked and runs nearly due north and south. Trains going north use the east main track, and those going south the west main track. The pike along which the automobile approached the crossing from the east nearly parallels the railroad tracks for half a mile or more, the intervening space being about 100 yards wide at the widest place gradually narrows to a "V" at the crossing. The land between the pike and the railroad tracks is nearly level, and for a distance of 500 feet before the crossing is reached there is no obstruction between the turnpike and the railroad right of way except some telegraph poles and a wire fence; but from the crossing for some distance back toward Moreland Station, and in the direction from which the automobile was approaching, the railroad tracks are in a cut, which, however, is not of sufficient depth to conceal a train therein, as it is not more than about six feet deep at any place.

As Elkin and Barnette approached the crossing, a freight train was also approaching it on the near or east track, and, seeing this, Elkin stopped the automobile a short distance from the track and waited for the freight train to pass. As soon as this train cleared the crossing, or at least before it was possible to see whether or not a train was approaching on the other track, Elkin started the car, and, when it reached the far or west main track, it was struck by a fast passenger train coming from the north.

When they stopped to let the freight train pass, Barnette unbuttoned the curtains on his side of the automobile, and, as they started to cross the tracks, was looking in the direction in which the passenger train was approaching, and although he could see the west track upon which it was coming but a little way--not more than 50 feet under any of the evidence, because of the fact the freight train had not cleared his view of the track for a greater distance--he made no remonstrance when Elkin started across the tracks or at any time before the automobile was struck.

Conceding that Barnette was a guest in the automobile and not liable for any negligence upon the part of Elkin, it is insisted that by failing to remonstrate with Elkin in attempting to cross the tracks before it was possible to ascertain whether or not a train was approaching on the far track, he tacitly consented to the attempt and was guilty of contributory negligence as matter of law.

It is quite clear that, if Elkin had waited but a moment or two before attempting to cross the tracks behind the freight train, both he and Barnette would have seen the passenger train approaching and avoided the collision.

Assuming for the moment that the railroad company, through its agents in charge of the passenger train, was guilty of negligence by failing to give signals for the crossing at which the accident occurred, both Barnette and Elkin might have been guilty of contributory neglect as matter of law in attempting to cross the tracks as soon as the freight train had cleared the crossing, without waiting until it had gotten a sufficient distance away to enable them to see whether a train was approaching from the opposite direction on the other track, if it were not for other evidence in the record than that detailed above--to which counsel for the defense do not even refer in this connection--which in our judgment not only easily differentiates this case from those upon which the defendants rely, but also renders the attempt to cross the tracks as soon as the freight train had passed free from contributory negligence as matter of law, even considering Barnette as responsible therefor as Elkin.

The cases relied upon by the defendants, and which are pertinent only where the evidence is about as so far discussed, are: Marty v. Chicago, etc., Ry. Co., 38 Minn. 108, 35 N.W. 670; McCrory v. Chicago, etc., Ry. Co. (C. C.) 31 F. 531; Heaney v. Long Island Railroad, 112 N.Y. 122, 19 N.E. 422. And this court in the case of Wright v. C., N. O. & T. P. Ry. Co., 94 Ky. 114, 21 S.W. 581, 14 Ky. Law Rep. 788, gave expression to a similar view of the law as expressed in those cases.

The evidence in this case, which in our judgment not only renders the doctrine of the above cases inapplicable but also makes it unnecessary for us to decide whether or not decedent would have been...