Stephenson's Admrx. v. Sharp's Exors

• Decision Date: 25 November 1927
• Citation: 222 Ky. 496
• Parties: Stephenson's Administratrix v. Sharp's Executors, et al.
• Court: United States State Supreme Court — District of Kentucky

222 Ky. 496

Stephenson's Administratrix v. Sharp's Executors, et al.

Court of Appeals of Kentucky.

Decided November 25, 1927.

1. Railroads. — In action against railroad for death of automobile passenger at crossing at which train whistled and railroad had in operation wigwag and electric bell, evidence of railroad's negligence in failing to use means of warning deceased and driver held insufficient to make issue for jury.

2. Negligence. — If there is any evidence supporting defendant's plea of contributory negligence, it is duty of trial court to submit question to jury.

3. Negligence. — Negligence will not be presumed but it may be inferred from proven facts.

4. Negligence. — Duty is imposed by law upon guest in automobile to exercise ordinary care for his own safety.

5. Negligence. — Determination of what constitutes ordinary care on part of invited guest in automobile depends upon facts and circumstances in each case.

6. Negligence. — While ordinary care on part of invited guest in automobile necessarily depends on facts and circumstances of each case, he cannot ignore obvious dangers, and when his means of observing such dangers are the same as or better than those possessed by the driver, and he fails to observe them or, observing them, fails to warn the driver, he is guilty of contributory negligence.

7. Negligence. — In action against estate of driver for death of guest in automobile killed at crossing, it will not be presumed, on issue of deceased guest's contributory negligence, that he warned driver as to peril and that driver nevertheless deliberately drove in front of approaching train.

8. Negligence. — It is presumed that person will not do anything, which will directly imperil his life or that of his associates, with whom he is on good terms.

9. Negligence. — Guest in automobile approaching crossing, who was acquainted with crossing and its surroundings and knew car was approaching at high rate of speed, was required, in exercise of ordinary care, to use his senses of sight and hearing to ascertain whether it was safe for automobile to cross track, and failure to ascertain danger or warn driver thereof was contributory negligence precluding recovery against estate of driver.

10. Negligence. — In action against estate of driver of automobile by administratrix of guest for guest's death in crossing accident, issue of contributory negligence of guest in failing to ascertain danger of crossing track at high rate of speed or to warn driver thereof, held to make issue for jury.

11. Appeal and Error. — Appellate court must assume that jury was composed of sensible and reasonable men.

Appeal from Fayette Circuit Court.

FRANKLIN, TALBOTT & CHAPMAN and W.E. DARRAGH for appellant.

JAMES G. DENNY and WALLACE MUIR for appellees, executors.

HUNT, NORTHCUTT & BUSH, WOODWARD, WARFIELD & HOBSON, C.S. LANDRUM and ASHBY M. WARREN for appellee, Louisville & Nashville Railroad Company.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

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...