Stephenson's Adm'x v. Sharp's Ex'rs

• Citation: 1 S.W.2d 957,222 Ky. 496
• Parties: STEPHENSON'S ADM'X v. SHARP'S EX'RS et al.
• Decision Date: 25 November 1927
• Court: Court of Appeals of Kentucky

1 S.W.2d 957

222 Ky. 496

STEPHENSON'S ADM'X v. SHARP'S EX'RS et al.

Court of Appeals of Kentucky

November 25, 1927

Rehearing Denied Feb. 10, 1928.

Appeal from Circuit Court, Fayette County.

Action by Edwin A. Stephenson's administratrix against Llewellyn Sharp's executors and another. Judgment for defendants and plaintiff appeals. Affirmed.

Franklin Talbott & Chapman and W. E. Darragh, all of Lexington, for appellant.

James G. Denny and Wallace Muir, both of Lexington, for appellee's executors.

Hunt Northcutt & Bush, of Lexington, Woodward, Warfield & Hobson, of Louisville, C. S. Landrum, of Lexington, and Ashby M. Warren, of Louisville, for appellee Louisville & N. R. Co.

REES J.

On the morning of February 22, 1926, an automobile owned and driven by Llewellyn Sharp was struck by a train of the appellee Louisville & Nashville Railroad Company at a grade crossing on a public road known as the Russell Cave pike about a mile north of the city limits of Lexington. At the time of the accident Edwin A. Stephenson, a young man 22 years of age, was riding in the automobile as Sharp's guest. Both Sharp and Stephenson were killed instantly.

Stephenson's administratrix brought this action in the Fayette circuit court against the appellees Louisville & Nashville Railroad Company and the executors of Llewellyn Sharp seeking to recover damages for Stephenson's death.

The trial court sustained a motion for a directed verdict as to the Louisville & Nashville Railroad Company, and, the case having been submitted as to Sharp's executors, the jury returned a verdict in their favor.

Appellant urges as grounds for reversal that the court erred in peremptorily instructing the jury to find for the Louisville & Nashville Railroad Company and as to the appellees, executors of Llewellyn Sharp, that the court erred in submitting to the jury the question of contributory negligence and in refusing to peremptorily instruct the jury to find for the plaintiff.

Stephenson and Sharp left Lexington in the latter's automobile going north on Broadway toward the Russell Cave pike. The witness Irwin N. Lee, while walking south on Broadway between Third and Fourth streets, had his attention attracted to the automobile by reason of the speed at which it was traveling. He recognized Sharp and saw another man sitting by his side on the front seat. He testified that as the car passed him it was running at about 40 miles per hour and that the man sitting on the front seat by the side of Sharp was half turned toward Sharp with his arm on the back of the seat. The automobile was next seen by the witness Leroy Turner at a point about 600 feet from the railroad crossing. Turner was walking in the same direction the car was going, and when it passed him it was traveling from 35 to 45 miles per hour. He saw Stephenson sitting by the side of Sharp, and at the time they passed him both of them were looking straight ahead. He was approaching the crossing and could see the wigwag, which was located at the crossing. The wigwag was then operating. About 150 or 200 feet beyond Turner and about 400 or 450 feet from the crossing the witness Leon W. Taylor met Stephenson and Sharp. Taylor was in an automobile and was going toward Lexington and had just passed over the crossing in front of the train. He testified that the automobile in which Sharp and Stephenson were riding passed him at a speed of 35 or 45 miles per hour, and, knowing the train was rapidly approaching the crossing, he stopped his car and looked to see if Sharp's car was going to avoid colliding with the train. He did not observe any change in the speed of the automobile from the time it passed him until the collision, but he saw it swerve to the left just before it was struck by the train. He testified that when he passed over the railroad crossing the wigwag was operating. When the automobile passed him Stephenson was turned sideways looking toward Sharp as though engaged in conversation with him. Both the eyewitnesses to the accident and others, including members of the train crew, testified that the train whistled for the crossing. The train was going from the direction of Paris, which was to the right of Sharp's automobile and on the side on which Stephenson was sitting.

The ground urged for reversal as to the appellee Louisville & Nashville Railroad Company requires but little discussion. The evidence conclusively shows the train whistled for the crossing, the wigwag was operating, and an electric bell located at the crossing was ringing. There is a total absence of the usual negative testimony as to signals. It is said, however, that the trial court should have submitted the case to the jury on an issue as to whether or not the railroad company should have provided other means at the crossing for warning the traveling public than the wigwag signal. There is no evidence tending to show the crossing was an unusually dangerous one. A train approaching the crossing, as did the train in question, could be seen for a distance of several hundred feet by travelers on the highway. Under such circumstances it should not be left to the jury to determine whether other and additional means of warning should be employed. Payne, Agent, v. Barnette's Administrator, 196 Ky. 489, 244 S.W. 896; Louisville & Nashville Railroad Co. v. Jameson's Administratrix, 214 Ky. 552, 283 S.W. 1026. The trial court did not err in giving a peremptory instruction in favor of the railroad company, and the judgment as to it is affirmed.

It is earnestly insisted by appellant that there was no evidence to support an instruction upon contributory negligence. If there was any evidence supporting the plea of contributory negligence, it was the duty of the trial court to submit the question to the jury. Negligence will not be presumed, but it...