Spiegle v. Cincinnati, N.O. & T.P.R. Co.

• Decision Date: 18 May 1916
• Citation: 185 S.W. 1138,170 Ky. 285
• Parties: SPIEGLE v. CINCINNATI, N. O. & T. P. R. CO.
• Court: Kentucky Court of Appeals

185 S.W. 1138

170 Ky. 285

SPIEGLE v. CINCINNATI, N. O. & T. P. R. CO.

Court of Appeals of Kentucky.

May 18, 1916

Appeal from Circuit Court, Lincoln County.

Action by Ives M. Spiegle, by her next friend, against the Cincinnati, New Orleans & Texas Pacific Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

George D. Florence, of Stanford, and Emmet Puryear, Robert Harding and Jno. W. Rawlings, all of Danville, and J. P. Hobson &amp Son, of Frankfort, for appellant.

K. S Alcorn, of Stanford, and John Galvin, of Cincinnati, Ohio for appellee.

CLARKE J.

This action was brought against appellee by Ives Spiegle, an infant, suing by her father, Harry Spiegle, as her next friend, to recover for personal injuries inflicted in June, 1913, alleged to have been caused by the negligence of appellee in running its train against and upon her. The answer is a traverse of the petition, and upon a trial by a jury a verdict was returned in favor of appellee, and appellant's petition dismissed.

Only two grounds are presented for reversal: (1) That the court erred in refusing to give instruction A offered by appellant; and (2) in giving instructions 1 and 4.

At the time of the accident complained of appellant was only 19 months old. Her parents resided about one-half mile north of Waynesburg in Lincoln county, and about 150 yards west of appellee's railroad track. The mother left the appellant in the house one morning about 7:30 and went down a path leading from the house to a private crossing over the railroad, and thence to the other side of the track. After the mother had gone, the child, in an evident effort to follow her, left the house, got through the gate leading to the railroad's right of way, and was upon the railroad track at the crossing when a freight train aproached from the south. There is a rather steep grade as the train approached the crossing until within about 400 yards of same, where the grade changes, forming a knuckle, as it is called in the evidence, which prevented the engineer and those on the train from seeing any one at the crossing until they reached this hill or knuckle, after passing over which the track is straight and the view unobstructed to the crossing. The engineer in charge of this freight train testified that when he reached the top of the grade he saw an object ahead of him on the side of the track at the crossing, but that he was unable to distinguish what it was; that it looked to him like, and he believed it was, a piece of paper; that he continued to watch it, and when within four to five car lengths of the object it moved, and he discovered that it was a child; that he immediately applied the emergency brakes, blew the whistle, and called to the fireman to hurry over the cab to see if he could not rescue the child; that he did everything possible to stop the train at once; that the equipment for stopping worked all right, and he stopped the train as soon as it could have been done, but that before he was able to stop it, the front part of the engine passed over the child. The fireman gave practically the same testimony, and no other account is given of the accident; the only controversy in the evidence being as to whether the engineer gave signals approaching the crossing. The child lost three fingers on her left hand, but was not otherwise seriously injured.

The instruction offered by appellant and refused by the court is as follows:

"Instruction A. You are instructed that it was the duty of the defendant company and its employés in charge of the engine of the freight train mentioned in evidence, in approaching the crossing described in this case with said train, to keep a lookout ahead for persons upon and using said crossing, and to stop said train, if necessary, to avoid injuring persons thereon, and if you believe from the evidence that defendant company and said employés on said engine knew, or by the use of ordinary care could have known, that the plaintiff, Ives Spiegle, was upon said crossing, and in a place of danger, in time to have stopped said train and avoided injuring her, and failed to do so, and because of said failure to stop said train it ran upon and on to and injured her, then the law is for the plaintiff and you will find a verdict for her, and if you do not so believe from the evidence you will find for the defendant."

Instructions 1 and 4, given by the court, to which appellant objected, are as follows:

"No. 1. You are instructed that it was the duty of the defendant company and its employés in charge of the engine of the freight train mentioned in evidence, in approaching the crossing described in this case with said train, to keep a lookout ahead for persons upon and using said crossing, and to use ordinary care to stop said train, if necessary, to avoid injuring persons thereon, and if you believe from the evidence that the defendant company and said employés on said engine knew, or by the use of ordinary care could have known, that the plaintiff, Ives Spiegle, was upon said crossing and in a place of danger, and that she was a human being, in time to have stopped said train and avoided injuring her, and failed to do so, and because of said failure to stop said train it ran onto and

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