Shewmaker v. Louisville & Nashville Railroad Co.

• Decision Date: 27 May 1966
• Court: United States State Supreme Court — District of Kentucky
• Parties: William Sanford SHEWMAKER, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellee.

Page 283

403 S.W.2d 283

William Sanford SHEWMAKER, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellee.

Court of Appeals of Kentucky.

May 27, 1966.

Peter Perlman, Fowler, Rouse, Measle & Bell, Lexington, for appellant.

Denney, Landrum, White & Patterson, Charles Landrum, Jr., Edwin R. Denney, Lexington, J., Smith Hays, Hays & Hays, Winchester, James M. Terry, Eugene W. Herde, Louisville, for appellee.

PALMORE, Judge.

The appellant, Shewmaker, brought this suit against the appellee railroad company for personal injuries and property damage sustained by him when his truck was hit by a train at a crossing in the city of Mt. Vernon. After a jury had returned a $15,757 verdict in his favor the trial court entered a judgment n. o. v. for the railroad company, and he appeals.

Shewmaker was driving his truck and a trailer of cargo southward on U.S. Highway 25. The highway curves to the right and crosses a double set of railroad tracks which for the sake of convenience may be considered as running east and west. The train was approaching from the east, or Shewmaker's left, on the north track. As a motorist approaches the crossing his view of the railroad right-of-way is substantially obstructed by a service station and various signs in front of it, a large billboard situated parallel with the tracks and about 25 feet to the left of the highway, and an earth embankment along the north side of the tracks. The embankment is not as tall as a train engine, but it is one of the objects which in the aggregate reduce to an abnormal degree the opportunity of a southbound motorist to observe a train coming from the east.

In view of the extra-hazardous nature of the crossing the railroad company maintains automatic flasher lights and signal bells to warn travelers on the highway when a train is approaching. These signals are supposed to be electrically activated when the train reaches a point 1800 feet from the crossing. However, according to the testimony of both Shewmaker and Eula Day, a passenger in another vehicle simultaneously approaching the tracks from the opposite direction, they did not come on, nor did the train crew sound a bell or whistle, until the engine had almost reached the highway intersection. At this time Shewmaker was some 50 feet, or the length of his tractortrailer, from the north track. He says he was moving at a speed of 20 to 22 m.p.h. and required a distance of 85 to 100 in order to stop. Hence he was not able to stop before reaching the track, and the left front portion of his vehicle was hit by the lead engine of the train.

The accident happened in the daytime. Photographs and charts were introduced in evidence from which it seems indisputable that at certain points along the highway as he drew near the railroad tracks Shewmaker could have seen the train in time to stop, if only he had looked at the right time and at the right place, or if he had ignored the highway in front of his truck and kept an uninterrupted lookout to the left.

Shewmaker had used the crossing on many occasions and was familiar with the physical circumstances. He admitted that instead of looking to his left (until the automatic signals came on) he depended on the mechanical warning system. The ground on which the railroad company was granted a judgment n. o. v. was that he was contributorily negligent as a matter of law. Cf. Southern Ry. Co. v. Feldhaus, Ky., 261 S.W.2d 308 (1953).

The railroad company's brief places much reliance on such recent opinions as Cincinnati, N. O. & T. P. Ry. Co. v. Ferguson, Ky., 385 S.W.2d 947 (1965); Louisville & N. R. Co. v. Dunn, Ky., 380 S.W.2d 241 (1964); and Hargadon v. Louisville & N. R. Co., Ky., 375 S.W.2d 834 (1964). Those cases stand for the proposition that under ordinary circumstances a motorist approaching a grade crossing with an uninterrupted and unobstructed view (a) for a long distance up the track in the direction from which a train is coming, and (b) for an ample distance on the highway before reaching the intersection, cannot rely solely on a warning signal from the train, and if he drives heedlessly onto the track right in front of the train and is hit by it he must be held negligent. But that was not the situation in this case.

When the railroad crossing is equipped with gates or signal devices designed to warn the traveler of an approaching train, the silence or inaction of these protective devices is to some extent an assurance 'that no train is then dangerously approaching the crossing, and that travelers can cross in safety.' Southern Ry. Co. v. Burkholder, 264 Ky. 796, 95 S.W.2d 589, 592 (1936), quoted in Chesapeake & O. Ry. Co. v. Pittman, 292 Ky. 331, 166 S.W.2d...