Southern Ry. Co. in Ky. v. Winchester's ex'X.

• Decision Date: 15 November 1907
• Citation: 127 Ky. 144
• Parties: Southern Ry. Co. in Ky. v. Winchester's Ex'x.
• Court: Kentucky Court of Appeals

Page 144

127 Ky. 144

Southern Ry. Co. in Ky. v. Winchester's Ex'x.

Court of Appeals of Kentucky.

November 15, 1907.

Appeal from Jefferson Circuit Court; Common Pleas Branch; First Division.

EMMETT FIELD, Judge.

Judgment for plaintiff, defendant appeals — Reversed.

HUMPHREY & HUMPHREY and L. R. YEAMAN, attorney for appellant.

CHAS. H. SHIELD and O'NEAL & O'NEAL for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

On November 29, 1905, about 5:40 a. m., Clark A. Winchester was struck by an out-going train of the Southern Railway Company in Kentucky on the Hemlock Street crossing in Louisville, Ky., and instantly killed. This action was brought by his executrix to recover for his death, and, judgment having been entered in favor of the plaintiff against the railway company, it appeals.

It is charged in the petition that the Hemlock Street crossing was unusually dangerous; that it was much used; that the train that struck Winchester was running at a too rapid rate of speed; that there was no warning or notice of its approach to the crossing; that those in charge of the train did not have it under proper control and were not keeping a lookout; that there was no flagman, watchman, or gate at the crossing, as there should have been, as the crossing was in a thickly settled part of the city and was much used. By its answer the defendant controverted the allegations of the petition and pleaded affirmatively that the decedent lost his life by reason of his contributory negligence. This was controverted by the reply, which made up the issue.

The proof on the trial showed that the railroad crossing at Hemlock street was on a sharp curve, and that the right of way at this point was very narrow. One witness says it was only about 20 feet wide. Winchester was approaching the crossing from the south, and as he came along the sidewalk a high fence shut off all the view until he got within a few feet of the track. When he came from behind the fence and got upon the right of way, by reason of the sharpness of the curve he could not be seen by either of the men on the engine. The engineer testified that his view was cut off by the boiler, and the front brakeman, who was watching on the other side of the cab, did not see Winchester until after he was struck by the train, in consequence of the curve. One witness who was getting a bucket of water on the corner lot, only a few feet from the crossing, testified that as the train passed her no bell was ringing, and the plaintiff introduced other witnesses tending to confirm the testimony of this witness. By an ordinance of the city of Louisville the whistle is not allowed to be blown in the city limits, except in cases of emergency.

The proof for the defendant showed that it had on the engine a bell which rang automatically; that this bell was started when they left the yards, and was ringing when they approached the crossing. The train was a heavily laden freight running eight or ten miles an hour upgrade, and the exhaust made considerable noise. There was no gate or watchman at the crossing. There was a gate at the Catalpa street crossing, one square away, and also a gate at the Woodland avenue crossing one square away in the opposite direction. At the Hemlock street crossing there was a bell at the top of a pole. The bell was about the size of an engine bell, and had an arm to it from which a wire ran to the Catalpa street crossing and another to the Woodland avenue crossing. When a train was approaching the watchman in the tower at Catalpa street would ring the bell by pulling the wire if the train was coming from that direction; and if it was coming from the other direction the watchman at Woodland avenue pulled the wire and rang the bell. The defendant showed by these watchmen that the bell was ringing at the time the train in question approached. The defendant also proved by a witness who was coming along Hemlock street, approaching the crossing, some distance behind Winchester, that he heard the train coming and also heard a bell ringing.

It is insisted for the defendant that on this proof the court should have instructed the jury peremptorily to find for the defendant, and that under all the evidence no judgment against it should be permitted to stand. We cannot concur in this view. If the plaintiff's proof was true, neither of the bells was ringing; and, while the weight of the evidence would perhaps show that the engine bell was ringing, it would by no means follow from this that adequate notice of the approach of the train was given. It is well known that light and sound travel in straight lines. From the sharpness of the curve, the light from the headlight of the engine would not be thrown upon the crossing until the engine was practically at it; and the headlight would therefore not give the traveler who was near the crossing warning of the approach of the train. As sound also travels in a straight line, this might reach a man who was back from the crossing some distance where it would not reach a person who was near the crossing, as Winchester was, and he would have no notice of the approach of the train, unless he might see it, and this he could not do until he was practically on the track. Under the evidence of the defendant this train was running over the crossing without any lookout; for neither of the men in the cab who were looking out saw Winchester, or could see a man after he would come in view at the crossing. This was in a thickly settled part of the city. There was much traveling over the crossing, and, in view of the proof, it was a question for the jury, whether adequate...