Chesapeake & Ohio R. R. v. Dixon's Administratrix

104 Ky. 608 | Ky. Ct. App. | 1898

CHIEF JUSTICE LEWIS

delivered the opinion op the court.

This action was brought by Lucy Dixon, administratrix of Alexander Dixon, against the Chesapeake & Ohio Railway Company, owner, and R. H. Chalkey and William Sidles, engineer and fireman, of a railroad train, by collision with which plaintiff’s intestate was killed. The killing occurred on the crossing of the Chesapeake & Ohio Railroad, leading from Catlettsburg to Ashland, by a turnpike road extending from one to the other of the two cities, and being the only public highway from Catlettsburg to Ashland. The place of said crossing is within the corporate limits of Catlettsburg, and very much used.by persons in vehicles and on foot,; the proof showing that as many as five hundred or more persons cross there each day. Parallel to, and about eight feet from, the Chesapeake & Ohio Railroad track, is the track of the Ohio & Big Sandy Railroad, likewise crossed by the same highway. The evidence shows that at the time of the occurrence the deceased, Alexander Dixon, who wa's about seventy years of age, was going on foot from Catlettsburg,' westward, to his home, near Ashland. The train which killed him (being a passenger train) was going in the same direction. According to the evidence of eye-witnesses, he had crossed the track of the Ohio & Big Sandy Railroad, and was near to, and about to or had put his foot upon, the track of the Chesapeake & Ohio Railroad, when, his attention being apparently attracted, he looked up the track towards Catlettsburg; but seeing nothing, nor being able to see any object on the track at a greater distance than six hundred or seven hundred feet, on account of a curve in the track and intervening houses, he turned and looked westward along the track, about which time he was struck by the train. The train, which was fifteen minutes late, was running, according to the testimony of the engineer, fifteen to twenty miles, and, according to the testimony of others, between thirty and forty miles, per hour. He was struck with such force as to knock his body eight or ten feet in the air, and drive it bounding seventy-three feet, measured. According to the testimony of the engineer, when he first discovered him, Dixon was between the tracks of the Chesapeake & Ohio Railroad and the Ohio & Big Sandy Railroad; that he immediately gave the alarm signal, by short, sharp blasts of the whistle, and put the air brake on, and immediately Dixon looked in the direction of the approaching train, whereupon he released the air brakes, supposing Dixon would get out of danger. But other witnesses testify that the air brake was not put on until after Dixon was struck. The engineer and trainmen testified that a signal, by blowing the whistle, of the approach of the train to the crossing was made at the usual place, and they were corroborated by others not connected with the train; while others, who were near to the whistling post, and whose attention was given to the passing train, testify that there was no whistle until the train had approached very near to the crossing, when there were several short, sharp blasts of the whistle, in quick succession. There is evidence tending to show, and from which the jury could reasonably find, that those in charge of the train were guilty of negligence in two respects: First, in failing to give propel signal of the approach to the crossing; second, .considering that the crossing was within the limits of a city, the fact of the number of people usually crossing at that place in vehicles and on foot, and the short distance the track could be seen therefrom looking eastward, it was a high degree of negligence to move the train, when near the crossing, at even the rate of speed admitted by the engineer it was moving.

We will now consider the various grounds relied on by appellant for reversing the judgment:

It is contended that the verdict, which was $10,000, is excessive; and in that connection instruction No. 4 is objected to, being as follows: “If the jury find for the plaintiff, they shall assess such damages as will, in the opinion of the jury, reasonably compensate plaintiff for the loss sustained by the death of plaintiff’s intestate, not exceeding $30,000; and, in fixing the amount of su'ch compensation, the jury may take into consideration the power of the deceased to earn money.” This court has not heretofore considered itself authorized to interfere with the verdicts of juries on account of excessive damages assessed, unless they appear to- have been given under the influence of passion or prejudice; and, compared with other-cases that have been heretofore passed on by this court, we cannot say the assessment in this case was excessive. The instruction complained of, in our opinion, did not, nor could it, mislead or prejudice the jury; nor, as urged by counsel, is it liable to the same objection made to an instruction in the case of Kentucky Central Railroad Co. v. Gastineau, 83 Ky. 123.

The court did not err to the prejudice of appellant in permitting evidence to go to the jury that there was no flagman at the crossing where the accident occurred; for though that crossing is, according to the evidence, such a one as to require a flagman, the jury was not instructed in regard thereto. The argument of counsel that the evidence was, according to the rule confining a recovery to the particular acts of negligence charged, incompetent, is. not well founded, because there are no specific acts of negligence charged in the petition of appellee.

The main ground for reATersal is the refusal of the lower-court to sustain the petition of appellant the Chesapeake & Ohio Railroad Company for a transfer of this case to the United States court for the district of Kentucky. The ground upon which the transfer was sought, as alleged in the petition asking it, is that the action is wholly between citizens of different states; the Chesapeake & Ohio Railroad Company being a corporation created under the laws of the state of Virginia, and a citizen thereof,, while appellee, Lucy Dixon, is and was a citizen of the state of Kentucky. As appellants Ohalkey and Sidles were, when this action was commenced, citizens of Kentucky, the Royd circuit court had jurisdiction of the persons of all the defendants, as well as of the subject of the action, if the defendants were jointly guilty of the negligence alleged to have been the cause of the death of Alexander Dixon, and jointly liable therefor. It is alleged by appellee in her petition, and, so far from the contrary being shown by appellant the Chesapeake & Ohio Railroad Company, is clearly proved' by the evidence in this case, that appellants Chalkey and Sidles, as engineer and fireman of said train, were guilty of the negligence causing said death, and that the Chesapeake & Ohio Railroad Company, through its said employes, was also guilty of said negligence; and therefore they were jointly liable for the destruction of the life of said Dixon, caused thereby. It is not material that, as alleged in the petition for a transfer of this case, Chalkey and Sidles were made parties defendant for the single purpose of preventing the removal of the case by the Chesapeake & Ohio Railroad Company to the circuit court of the United States for the district of Kentucky, or what may have been the motive •of the plaintiff for bringing a joint action, unless they were wrongfully and illegally joined; and such is the doctrine as settled by the supreme court of the United States. As, therefore, appellant the Chesapeake & Ohio Railroad Company’ neither sufficiently alleged nor attempted to prove that the defendants were wrongfully joined as such, the lower court properly refused to make the transfer.

Judgment affirmed.