Smith's Adm'r v. Cincinnati, N.O. & T.P. Ry. Co.

• Citation: 146 Ky. 568,142 S.W. 1047
• Parties: SMITH'S ADM'R v. CINCINNATI, N. O. & T. P. RY. CO. et al.
• Decision Date: 02 February 1912
• Court: Court of Appeals of Kentucky

142 S.W. 1047

146 Ky. 568

SMITH'S ADM'R v. CINCINNATI, N. O. & T. P. RY. CO. et al.

Court of Appeals of Kentucky.

February 2, 1912

Appeal from Circuit Court, Boyle County.

Action by Asbury Smith's administrator against the Cincinnati New Orleans & Texas Pacific Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Robert Harding and B. F. Procter, for appellant.

Charles H. Rodes, George E. Stone, and John Galvin, for appellees.

CLAY C.

Asbury Smith was struck and killed on December 21, 1907, by a train operated by the Cincinnati, New Orleans & Texas Pacific Railway Company. Charging that his death was due to the negligence of the railway company and its conductor, Thomas Quinlan, and its engineer, John Knosk, his administrator brought this action to recover damages. Upon motion of the defendants at the conclusion of all the evidence, the court peremptorily instructed the the jury to find for them. Judgment was entered accordingly, and the administrator appeals.

The intestate was 26 years of age, and a deaf mute. He was a student at the Kentucky School for the Deaf at Danville. On the day of the accident, he boarded appellee's midday train at Danville for the purpose of going to Junction City and there taking passage via the Louisville & Nashville Railroad for his home in Bowling Green, Ky. Junction City is a town of about 900 inhabitants, and, being the junction of the Cincinnati, New Orleans & Texas Pacific Railway and the Louisville & Nashville Railroad, a large number of trains pass there daily. These two roads cross each other at right angles; the former running north and south, and the latter running east and west. Both roads use the same depot which is situated in the northeast angle of the two roads. In the northwest angle is the signal tower, a two-story building about 15 feet and 3 inches wide. From the east side of the tower to the west rail of the Cincinnati, New Orleans & Texas Pacific track the distance is 15 feet. In the southeast angle of the tracks is the Tribble House, a hotel, and in the southwest angle is the McCullom House, another hotel. The west side of the McCullom House is several feet west of the tower. There is a well-defined pathway leading from the McCullom House along the side of the Louisville & Nashville track and across the Cincinnati, New Orleans & Texas Pacific track to the depot, which is situated in the northeast angle of the two roads. In proceeding from the McCullom House along the pathway, there is nothing to obstruct the view of a train approaching from the north on the Cincinnati, New Orleans &amp Texas Pacific Railway, until the tower is reached. Then the view is obstructed for the space of 15 feet and 3 inches. When the tower is passed, the view of the track is unobstructed, and an approaching train may be seen for a distance of several hundred feet.

The intestate reached Junction City shortly after 11 o'clock a. m. He got off the train at the depot, and proceeded to the McCullom House to get something to eat. After procuring a ham sandwich, he came out of the hotel, and walked north across the Louisville & Nashville track for a distance of 30 feet. He then turned to the east, and, taking the footpath proceeded in the direction of the Cincinnati, New Orleans &amp Texas Pacific track. While crossing this track, he was struck by fast, south-bound passenger train No. 1. All the witnesses testify that the whistle of the engine on this train was blown for the station. It was also blown for the board. The train was not required to stop at the crossing, as the crossing was equipped with a derailing switch. The whistle also blew for the Shelby street crossing, and, when the intestate was about to step or leap on the track in front of the approaching train, the danger or distress signal was sounded. The train had whistled for the station while the intestate was in the hotel. The other signals were given after he came out. As he proceeded north, the train was in view. As he proceeded east, it was also in view except for the time he was behind the tower. As the train approached, the bell was being rung, and the engineer was at his post of duty. The footpath between the hotel and the depot was traveled daily by a large number of persons, including passengers. Junction City is an incorporated town. There was sufficient evidence to show that the place was one where the presence of persons crossing the track might have been reasonably anticipated. The train was running at about 40 or 45 miles an hour. It was a through train, and did not stop at the station. When the intestate approached the track at right angles, he was looking east and did not turn his eyes toward the approaching train, which was within a few feet of him. Two or three persons attempted to attract his attention to the approaching train by making motions and calling to him. One person present attempted to catch him just as he went upon...