Spalding v. Louisville & N.R. Co.

• Decision Date: 19 January 1940
• Citation: 281 Ky. 357
• Parties: Spalding v. Louisville & N.R. Co. Brady v. Same. Mills v. Same.
• Court: United States State Supreme Court — District of Kentucky

281 Ky. 357

Spalding v. Louisville & N.R. Co.

Brady v. Same.

Mills v. Same.

Court of Appeals of Kentucky.

January 19, 1940.

1. Railroads. — Where the view up and down railroad track by one traveling on public highway which crosses track is obstructed, greater precautions must be taken by the railroad.

2. Railroads. — A railroad company has the duty to clear its right of way of obstructing rubbish and other growths, so as to afford a traveler on the highway an opportunity to discover the approach of trains at crossings.

3. Easements. — The duty of maintaining a private pathway in a safe traveling condition is on the dominant estate, rather than on the servient estate.

4. Railroads. — Occupants of automobiles who were injured when automobile in which they were traveling over private road was struck by train at crossing, allegedly because bushes and weeds on railroad's right of way adjacent to private road obstructed their view of tracks, could not recover from railroad, since railroad was merely the servient estate owner, and hence under no duty to make the road safe for travel.

5. Railroads. — Owner of private road over railroad tracks had, as the owner of the dominant estate, the right to enter on railroad's right of way in order to make the road safe for travel.

Appeal from Washington Circuit Court.

Polin & Polin for appellants.

W.F. Grigsby, H.M. Grigsby, P.K. McElroy, J. Miller White and H.T. Lively for appellee.

Before Sanders E. Clay, Special Judge.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

On October 9, 1937, at about noon, a train of appellee, and defendant below, the Louisville and Nashville Railroad Company, running on its track on its line of railway in Washington County, collided with an automobile at a grade crossing of a private passway or road at the point where it crossed the railroad track. The passway or road, and also the crossing, was on the farm of one John Barber, and it was maintained exclusively for his benefit in going from a public road to his residence located some distance therefrom. The automobile in which appellants were traveling over the private road or passway was owned by appellant, C.M. Spalding, and the other two appellants (Brady and Mills) occupied it with him at the time, together with some others. They had not obtained the express consent of Barber to make that specific trip over the private passway, but inasmuch as they were constructing a bridge across some stream beyond his residence (but for whom the record does not disclose), they might be considered as possessing an implied invitation to travel the passway to and from their work. However, we do not regard the fact of consent or non-consent of the owner of the private way as material.

The collision resulted in seriously damaging the automobile in which appellants were traveling and inflicted personal injuries on each of them. They later filed their separate actions in the Washington circuit court to recover their respective damages, charging in their petitions general negligence on the part of the defendant and appellee in operating its train, whereby the collision was produced. They later amended their petitions and alleged that defendant had permitted its right of way adjacent to the private road to grow up in bushes and weeds to such an extent as to obstruct a view of the railroad track in either direction by one approaching the track from the direction traveled by plaintiffs, which, they averred, prevented them from seeing the approach of the train until they got within about 15 feet of the track. They also averred that, when they arrived at that distance from the track on the involved occasion, they stopped the automobile and endeavored by looking and listening to ascertain if a train was approaching, and, discovering none, they proceeded to cross the track and did not discover the approach of defendant's train until the front part of the automobile had gotten upon the track, when it was too late to extricate themselves from their dilemma. The answer denied the material averments of the plaintiffs' pleadings, with a plea of contributory negligence which was in turn denied, thus forming the issues.

The testimony supported in the main the averments of the petitions as amended, though some of the witnesses, all of whom were introduced by plaintiffs, testified that the condition of the right of way, produced by suffering the growth thereon complained of, was not as obstructive to either the view or hearing of the approach of the train as some of plaintiffs'...