Tennessee Cent. Ry. Co. v. Hancock's Adm'x

• Court: Kentucky Court of Appeals
• Writing for the Court: STANLEY, C.
• Citation: Tennessee Cent. Ry. Co. v. Hancock's Adm'x, 245 Ky. 426, 53 S.W.2d 708 (Ky. Ct. App. 1932)
• Decision Date: 31 May 1932
• Parties: TENNESSEE CENT. RY. CO. v. HANCOCK'S ADM'X.

53 S.W.2d 708

245 Ky. 426

TENNESSEE CENT. RY. CO. v. HANCOCK'S ADM'X.

Court of Appeals of Kentucky

May 31, 1932

As Modified on Denial of Rehearing November 15, 1932.

Appeal from Circuit Court, Christian County.

Action by R. C. Hancock's administratrix against Tennessee Central Railway Company. From judgment for plaintiff defendant appeals.

Reversed for consistent proceedings.

J. W Downer, of Hopkinsville, for appellant.

H. W Linton, of Hopkinsville, for appellee.

STANLEY C.

R. C Hancock was killed when an automobile in which he was riding struck a pillar of a railroad underpass on highway No. 41-W, a few miles south of Hopkinsville. His administratrix recovered a judgment for $5,000 against the appellant, Tennessee Central Railway Company, on the ground of negligence in erecting and maintaining the viaduct.

When the railroad was built in 1903, a change was made in the highway, and the bridge was built to avoid a grade crossing. It is about 87 feet between the extreme piers. The middle supports are two spans of fabricated steel columns, on concrete foundations, sitting diagonally with the track, but parallel with the road which runs between them. The highway on either side of the underpass is from 20 to 24 feet wide, but the paved surface is only 18 feet. The distance between the columns is 18 feet, narrowed to 17 feet at the base for a height of 18 to 20 inches. Travelers approaching the underpass from the north (as was the decedent) can see the left-hand pier from a point about 114 feet back, and can see both supports and a clear passage through when they get 80 or 85 feet away. Beginning a quarter of a mile north, at Steger's store, the highway is practically straight and parallels the railroad. It declines toward the underpass on a 5 per cent. and then 2 per cent. grade until it gets within a short distance of the underpass where it is level from there on through it. Beginning about 115 feet north, the road begins to gradually curve to the right, and goes straight through the underpass on a 45 degree angle, and then turns to the left and proceeds along the west side of the railroad. The railroad fill, or wing of the underpass, constructed of loose rock extends out from the structure on the inside of the curve in the road, and forms some obstruction to the view of the supports of the viaduct. The situation and the structure have been vividly presented to us by several photographs and an accurate map.

The decedent was riding on the front seat of the automobile of a neighbor, Crews, who was driving at the time of the accident. On the back seat were two colored men. The party had gone to Hopkinsville from their homes in the southern part of the county that morning, but by a different route. They were returning home, and reached the point of the accident about six o'clock in the evening of November 4, 1929, at which hour it was twilight. In addition to the naturally poor visibility at that hour of the day, the vegetation along the roadside was a faded gray, about the same color as the roadbed. Lines of telephone poles on each side of the road continued straight ahead beyond the curve instead of crossing the railroad with the highway, thereby giving the appearance of the road continuing beyond through the lane of poles thus formed. This condition, it is said, deceived the driver, who was not very familiar with the road, although he traveled it once in a while, and knew that there was an underpass somewhere along the way. The automobile had been used only about two months, and had been serviced that day in Hopkinsville. The witnesses for the plaintiff testified that the car was traveling 35 or 40 miles an hour, with the lights burning, as it approached the underpass. None of them realized that an underpass was ahead until they got within 60, 80, or 90 feet of it. The driver testified that, when he realized the situation and saw that he could not make the complete turn, he applied the brakes and reduced his speed. The brakes were in good condition. One witness said that marks of skidding were left on the road but for what distance is not disclosed. The automobile struck the left-hand steel column of the underpass with such terrific force as to practically destroy it. All of the men in it were injured, and Hancock died from his injuries about twelve hours after the accident. There is conflicting evidence as to whether there were any road signs indicating the approach to a curve. Several automobile mechanics and drivers testified that an automobile of the kind involved traveling at 40 miles an hour could be stopped within from 30 to 50 feet. But Crews stated it would take from 100 to 120 feet to come to a dead stop. He testified that he was perhaps 30 yards from the underpass when he realized he was approaching it.

Engineers testified that the underpass was a standard, approved type, in common use, and the most suitable for the place. They explained that, if the space between the supports on either side of the highway as it passes under should be widened, much larger girders would be necessary, and the head clearance would be reduced to a point of danger. Without objection, the company was permitted to prove that there had not been a similar accident at the place.

The fifth division of section 768 of the Statutes gives railroad companies authority to construct...