Rowe v. Louisville & Nashville R. R. Co.

• Decision Date: 24 May 1911
• Court: Kentucky Court of Appeals
• Parties: Rowe v. Louisville & Nashville R. R. Co.

143 Ky. 823

Rowe v. Louisville & Nashville R. R. Co.

Court of Appeals of Kentucky.

Decided May 24, 1911.

Appeal from Whitley Circuit Court.

H. L. BRYANT, R. S. ROSE and S. S. LAWSON for appellant.

CHAS. H. MOORMAN, BENJAMIN D. WARFIELD and HIRAM H. TYE for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

The appellant, Rowe, brought this action against the appellee company to recover damages for injuries to himself and horse alleged to have been sustained through the negligence of its employes in charge of a train. Upon the conclusion of the evidence for the appellant, the court directed the jury to return a verdict for appellee, and it is of this ruling the appellant complains.

The petition averred that the public road upon which appellant was riding crossed at grade the appellee company's track, and then ran parallel with the track for a distance of several hundred yards. That —

"While riding along said public road, the defendant, its agents and employes of their gross negligence and carelessness, so handled, operated and managed its train, engine and whistle as to very severely frighten and scare his said mare, thereby causing her to become unmanageable, and causing her to run away with this plaintiff, through a barbed-wire fence near the road. * * * He says that by the negligent and careless operating, handling and controlling of said train, engine and whistle, said mare was scared and forced to break away and through said barbed-wire fence, thereby so cutting and bruising said animal as to permanently injure her. * * * Plaintiff says said railroad and dirt road ran within a few feet of each other, and so extend for several hundred yards; that defendant negligently and carelessly caused each and all of said injuries; that defendant, its agents and employes knew or could have known of the danger to plaintiff, and his said animal, in due time to have averted the same, but in lieu of averting same, wantonly, recklessly, negligently and carelessly so blew said whistle and operated, controlled and managed said train, which train was a freight train and going south on defendant's track, and so negligently and carelessly blew the whistle on the engine of said train as to cause all of the injuries complained of."

The appellant was the only witness introduced in his behalf. He testified in substance that the train that frightened his horse did not give the statutory signals of its approach to the public crossing until after the engine had passed the whistling post erected by the company, and the point at which the whistle should have been first sounded. That after it had passed the whistling post and when the engine was about opposite the point at which he was riding, it sounded the first crossing whistle, and it was this signal that frightened his horse, causing the damage complained of in his petition. He was further permitted to testify over the objection of counsel for appellee that if the crossing whistle had been sounded before the engine reached the whistling post, he could have escaped injury by riding to a place on the public road some distance from the railroad where he could have controlled his horse and avoided the barbed-wire fence into which he plunged; but that he did not know of the approach of the train until it was too late to ride to this place of safety.

Appellant attempted in his evidence to show that the persons in charge of the engine were negligent in two particulars: (1) In not sounding the crossing whistle at the point where it...