Piersall's Adm'r v. Chesapeake & O. Ry. Co.

• Decision Date: 24 May 1918
• Citation: 203 S.W. 551,180 Ky. 659
• Parties: PIERSALL'S ADM'R v. CHESAPEAKE & O. RY. CO. ET AL. BLACK'S ADM'R v. CHESAPEAKE & O. RY. CO. ET AL.
• Court: Kentucky Court of Appeals

203 S.W. 551

180 Ky. 659

PIERSALL'S ADM'R v. CHESAPEAKE & O. RY. CO. ET AL.

BLACK'S ADM'R v. CHESAPEAKE & O. RY. CO. ET AL.

Court of Appeals of Kentucky.

May 24, 1918

Appeal from Circuit Court, Clarke County.

Actions by William Piersall's administrator and Phillip Black's administrator against the Chesapeake & Ohio Railway Company and others. From judgment for defendants on a directed verdict in each case, plaintiffs appeal. Affirmed in each case.

Pendleton & Bush and B. R. Jouett, all of Winchester, and Franklin &amp Talbott, of Lexington, for appellants.

J. M Benton, of Winchester, and Shelby, Northcutt & Shelby, of Lexington, for appellees.

HURT J.

William Piersall and Phillip Black were traveling from Lexington in the direction of Winchester in an automobile, which was owned and being driven by Black. At a public crossing of the track of the Chesapeake & Ohio Railway Company over the pike, upon which they were traveling at Pine Grove, the automobile and a fast train of the railway company collided and caused the deaths of both of the occupants of the automobile. An action was instituted by the administrator of each of the decedents against the railroad company and its engineer and fireman who were operating the train, to recover from them the damages sustained by each of their estates because of their deaths. The contention of the administrators of the deceased parties is that the ones who were operating the train negligently ran the train against the automobile as it was crossing over the track of the railroad, and thus caused the death of the occupants, while the railroad company denies that there was any negligence in the operation of the train or that the train was run against the automobile, but, upon the other hand, that the deaths of the occupants were caused by their negligently running the automobile against the train as it was passing over the crossing, or at least that they failed to exercise ordinary care for their own safety in attempting to cross the track at the time, and that such negligence so contributed to their deaths; that but for it they would not have suffered any injury. The charges of negligence against the decedents were denied by the administrators. The evidence applying to each of the actions being to a large extent necessarily the same, they were heard together in the circuit court, and at the conclusion of all the evidence, which was offered by the plaintiffs, the court sustained a motion to direct the jury to find a verdict for the defendants in each action, and rendered a judgment denying the relief sought, and dismissing the petition in each case. From the judgment in each action the plaintiff has appealed, and seeks a reversal upon the ground that the court erred in peremptorily directing the jury to find a verdict for the defendants.

The particular ground upon which the court based its action in directing the verdict as it did does not from the record appear; hence it will be first considered whether the evidence heard tended to prove any actionable negligence upon the part of the defendants, which was the proximate cause of the deaths of the decedents, or in other words, whether there was any issue made in the evidence of negligence on the part of the defendants which necessitated the submission of the issue to the jury, for if there was no contradiction as to the facts, the question as to whether or not there was actionable negligence was a question of law for the court. L. & P. Canal Co. v. Murphy, 9 Bush, 522; Dolfinger v. Fishback, 12 Bush, 478; L. & N. R. R. Co. v. Raines, 23 S.W. 505, 15 Ky. Law Rep. 423; L. & N. R. Co. v. Breeding, 13 Ky. Law Rep. 397.

The Pine Grove station or depot is a building, which is situated upon the north side of the railroad track and about 15 feet from the middle of it. In front of the building and within a foot or two of it there is erected an iron post about 4 inches in diameter, which is called a signal tower. Upon the south side of the track and about the same distance from it as the depot building is a house used for a warehouse. Directly north of the depot building and about 19 or 20 feet from it is a small storehouse, and 200 of 300 feet east of the storehouse, but somewhat closer to the track, is a small outhouse of some character or other. The railroad track at this point is a line from Winchester to Lexington, and follows a course which is from the east to the west, and for a distance of about 10 miles to the east and to the west of the station, though how far either way the evidence does not disclose, the track is substantially a straight line, and has a slight ascending grade from about 2,500 feet east of the station to about 900 feet east of the station, from which point it has a descending grade of approximately eight-tenths of 1 per centum to a point which is 2,000 or more feet to the westward of the station. Coming from the east the track passes through a cut, which, at a point 900 feet to the east of the station, is about 20 feet in depth, and decreases in depth until 500 or 600 feet of the station, where it is only 5 or 6 feet in depth, and disappears before arriving at the station. It does not appear that a train is hidden from view by the cut in any place within 300 yards of the station when viewed from any point in the neighborhood of the station, and from the crossing a train may be seen approaching the station from the east for a mile or two. A whistling post for the station is erected 2,570 feet east of the station.

The pike, which the decedents were traveling from Lexington, approaches the crossing from a direction slightly north of west, but when it arrives within 60 or 70 feet of the crossing the pike curves sharply to the southward, and passes over the railroad track at the grade at right angles to the track and immediately to the west of the depot and the warehouse, which is on the opposite side of the track from the depot. Near the pike to the north and south of the crossing and near to another pike, which intersects the one above described to the north of the crossing, there reside about one dozen ramilies within probably a quarter of a mile of the crossing. There are two storehouses within the same radius; one to the north and the other to the south of the crossing, but at what distances from it does not appear. The pike, as it approaches the crossing from the north, has an ascending grade of 3 feet in 100 feet, from about 250 feet to the northward up to the crossing. From a point upon the pike 100 feet to the north of the crossing and probably further, a person in an automobile approaching the crossing from the northward can see a train approaching the crossing from the east at a point 500 feet to the east of the crossing, and his view of an approaching train is not obscured in any way until he arrives at a point 57 feet from the track, when his view of a train approaching from the east is cut off by the depot building for a distance of 42 feet and until he passes the depot and is 15 feet from the track, when he can see such a train at a point 900 feet or further to the east of the crossing, and when upon crossing or within a few feet of it can see an approaching train upon the track for a mile or more.

Four eyewitnesses of the tragedy testified upon the trial. Two of them were the engineer and fireman in charge of the train and the other two were persons who resided beside the pike along which the decedents approached the crossing, and at a point about 85 steps, of 3 feet each, or 255 feet, to the west of the crossing, and who were, at the time, in plain view of the crossing over the railroad track as well as the pike, from the place where they were to the crossing. They both testified to having heard the steam whistle of the approaching train give a long signal when at the whistle post to the east of the station, and just at that time the decedents passed them in the automobile, and traveling at a rate of 15 to 20 miles per hour. The automobile continued on toward the crossing, and one of these parties testified that it made no check in its speed, until it collided with the train, but the other said that when it began to go around the curve in the pike, 70 or 80 feet from the crossing, its speed seemed to slightly decrease, and as it was passing around...