Watson's Admr. v. C. & O. Ry. Co.
| Decision Date | 17 May 1916 |
| Court | Kentucky Court of Appeals |
| Parties | Watson's Administrator v. Chesapeake & Ohio Railway Company, et al. |
Appeal from Greenup Circuit Court.
J. B. BENNETT, J. B. WILHOIT and R. S. DINKLE for appellant.
WORTHINGTON, COCHRAN & BROWNING and PROCTOR K. MALIN for appellees.
This action was instituted by the appellant, the administrator of Eva Watson, deceased, against the appellees, Chesapeake & Ohio Railway Company and William Lewis, a locomotive engineer in the employment of the appellee, railway company, to recover the damages sustained by the estate of decedent because of the destruction of her life by appellees. The cause of action alleged and relied upon was the alleged negligence of appellees in running a fast passenger train against the deceased, who was walking upon one of the tracks of the C. & O. Ry. Co., in the outskirts of the town of Fullerton, and thereby causing her instant death. The appellees denied that they were guilty of any negligence, which resulted in her death, and further, alleged that she was guilty of contributory negligence, without which she would not have lost her life.
After all the evidence had been heard, the court sustained a motion to peremptorily instruct the jury to return a verdict for appellees, which was done, and a judgment entered thereon adjudging that the petition be dismissed.
From the judgment this appeal has been prosecuted, and the appellant insists that the court was in error in directing a verdict for appellees.
The town of Fullerton is an unincorporated town situated upon the line of the Chesapeake & Ohio Railway Company in Greenup county, and contains four or five hundred inhabitants. The station of the railroad is located upon the eastern side of the town. The railroad tracks at this place, extend eastwardly and westwardly, and there are two tracks which lie parallel to each other. About two hundred and sixty feet east of the station, a way, which is called Harrison street, extends across the railroad tracks, at right angles to the tracks. This street is about fifty feet in width, and the north end of it leads in the direction of one of the ferries across the Ohio river. Toward the south Harrison street, at a distance of several hundred feet from the railroad tracks, connects with a public road, which extends in a northeast direction from that point, and as it goes grows further away from the railroad tracks. On that part of Harrison street, which is situated north of the railroad tracks, there are eight houses, an equal number of which front the street on each side. The house on the east side of the street, which is nearest to the fence enclosing the railroad right of way, is about one hundred feet from the fence. On that part of Harrison street which is south of its crossing over the railroad tracks there are twelve houses, six upon each side, and each of these front upon the street. East of Harrison street and south of the railroad right of way and parallel with Harrison street, there are two short streets, which extend from the railroad right of way to the public road. Upon these short streets and near to them there are fourteen buildings, which front upon these streets or the public road to the south of them. The greater number of these buildings are dwellings, but several are barns and abandoned houses, and one is a church, which is immediately upon the public road. To the south of the public road there are nine buildings, which front upon the public road. Commencing at a point about twelve hundred feet east of Harrison street, upon the public road, there are situated and fronting upon the road, seventeen other buildings, the greater number of which are dwellings, but these houses are separated from the railroad right of way by several hundred feet, in width, of enclosed land. From Harrison street, going toward the east and upon the south side of the railroad right of way, there is no dwelling nor business house which fronts to the railroad right of way, and except these unoccupied buildings, and which are not dwellings, and which are within four or five hundred feet of Harrison street, there are not any buildings in close proximity to the right-of-way of the railroad. Upon the north side of the railroad right-of-way, from Harrison street going eastward, there are not any buildings of any character, until a small hamlet called Morton's Addition, is reached, which is from three-fourths of a mile to a mile from the Harrison street crossing and contains sixteen or eighteen buildings. The town of Fullerton seems to be chiefly located to the west of the railroad station. The railroad right-of-way is enclosed upon each side by a wire fence, which commences immediately at the eastern line of Harrison street and extends from thence on toward the east, at least as far as Morton's Addition, and beyond this the evidence does not show how it is. Between forty and fifty feet to the east of Harrison street, a cattle guard extends across both tracks of the railroad, and is connected at the ends by wings to the fence upon either side of the right-of-way. From the cattle guards, to the east, the railroad tracks are constructed upon a fill, which extends from the guards for a distance of about twelve hundred feet. Near the center of this distance the fill is about fifteen feet in height. The public travel up and down Harrison street and over the railroad tracks at the crossing of the tracks over Harrison street is considerable, and along the tracks or near to them to the westward of Harrison street and about the station. There was not any sidewalk or walking way of any kind upon the railroad right-of-way, to the eastward of Harrison street, but sometimes the people who lived at Morton's Addition would, when coming into Fullerton or going to the ferry near Fullerton, walk along the tracks of the railroad and pass over the cattle guards. At times, some of the people who lived to the south of the railroad right-of-way and between it and the county road, getting through or over the wire fence which enclosed the right-of-way upon that side, would then get upon and walk along the railroad tracks and pass the cattle guards and reach Harrison street in that way. The number of persons who used the railroad tracks longitudinally as a walking way at the point where the cattle guards are situated, according to the various estimates made by the witnesses, were from fifty to one hundred and twenty-five persons per day. The cross-examination of these witnesses, however, shows that these numbers are grossly exaggerated.
The decedent, Eva Watson, was a bright girl, between fifteen and sixteen years of age, and resided with her parents in Morton's Addition. The day upon which she unfortunately lost her life, she was at the post office in Fullerton, which is situated near the railroad station, and was accompanied by her little sister, who was only about six years of age. From the post office they went to the store of a merchant, which is situated upon the west side of Harrison street, and between the railroad and the public road. From the storehouse they proceeded to the railroad crossing over Harrison street, and just at the time they arrived at the crossing a freight train, which was composed of an engine and three cars, was moving very slowly over the east bound track, and the engine was upon the crossing. The decedent and her sister ran across the track in front of the engine, thus passing over the east bound track and got upon the track over which the west bound trains operated, and then walked up this track in the direction of the cattle guards. Just, at this time, a fast passenger train was coming from the east over the track upon which the decedent was walking, and when it arrived at the whistling post for the station and crossing, which was eleven hundred and thirty-four feet east of the cattle guard, the ordinary signals of its approach were given, and these signals were heard by all the witnesses. Immediately following the signals given for the crossing and station, a succession of signals were heard, which consisted of short, sharp blasts from the engine whistle, and which were recognized as the signals when one is discovered to be upon the track before the engine, and these signals were continued until the engine reached the cattle guards. The decedent continued to walk forward meeting the train, or was standing upon the cattle guard when she was struck by the onrushing train and instantly killed. The train stopped with the last coach about the center of the...
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