142 Ky. 478 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
In July, 1909, the appellant, Mrs. Cox, while driving in a buggy on a public highway, discovered a freight train standing on the crossing over which she desired to pass. Upon making this discovery, she stopped her horse some three hundred feet from the railroad crossing, and, getting out of the buggy, walked down to the track for the purpose of getting the men in charge of the train to “cut it” or move it off the crossing, so she could go on her way. When she reached the train, she discovered on the other side of the cars a person, not connected with the railroad, whom she knew, and asked him to tell the engineer to clear the crossing, and then went back to her buggy. When the crossing was cleared, Mrs. Cox got in her buggy, and when she drove down to the track her horse became frightened, and attempted to
In its answer, after traversing the material averments of the petition, the company pleaded that the appellee was guilty of contributory negligence in attempting to cross the track in front of the engine, when she knew that steam and noise were escaping therefrom.
A trial before a jury resulted in a verdict in favor of the railroad company, and a judgment was entered accordingly. The errors assigned for reversal are that the court misinstructed the jury.
The only witnesses on behalf of the appellee were herself and her husband. She testified:
“I got in my buggy and drove towards the track. When I got near, the engine was making a good deal of noise, and I asked if they were ready for me to pass, and the boy on the engine signalled for me to pass, but the fireman did not get out of his seat. I drove a little way, and the steam frightened my horse, * * * and •the engine was puffing, and shrieking, and puffing, and letting off steam, it seemed tó me at every possible place for steam to be let off. Q. State what noise it was making when it stopped south of the crossing after it had backed over the crossing? A. It was howling and shrieking in every place there is for steam to escape. Q. You say you saw the train back down beyond the crossing? A. Yes, sir. Q. That engine was escaping steam at the time, was it not? A. Yes, sir.”
The husband of Mrs. Cox, who at the time in question was a farmer but had several years before been a railroad engineer, was asked:
“What is the proper method with railroad men, if you know, regarding the stopping of an engine at a crossing?” H'e answered:- “An engine should not be allowed to escape steam that way; an engineer can prevent it-if he will. Q. Do you mean that an engine can be stopped
The engineer testifies that he had a train of twenty-five cars and had been on the side track only a few minutes when some person asked if he would have the crossing .cleared, and in answer he signalled his fireman, who was also an engineer, to “back up,” and thereupon the fireman backed the engine off of the crossing. He further testifies that the engine was popping off steam from the time he pulled in on the side track, and was only making the usual and necessary noises that an engine that has been pulling a heavy train will make when it is stopped. That there was no steam escaping except the popping off, but that could have been controlled and lessened if he or the person in charge of the engine had notice that it would cause the horse to be frightened, but that he had no information of this kind until after the fright of the horse was discovered, and it was then too late to regulate the engine.
The fireman testified that some person called to him and told him to clear the crossing, and that he did not see Mrs. Cox or her horse at the time or know who it was that wanted to cross until after the horse became frightened. That when signalled to clear the crossing, he backed the engine over it and stopped about fifty-eight feet from it, and that steam was escaping in the same manner from the engine and it was making the same amount of noise from the time it stopped until appellee’s horse became frightened. That when he stopped the engine after clearing the crossing, he went over on his side of the cab, and then for the first time saw Mrs. Cox, approaching the crossing from that side of the engine. That when he first saw her, she was close to the track, and observing that her horse was frightened, he stepped over to the engineer’s side with the intention of putting on the injector to reduce the steam pressure, but upon reflection abandoned this purpose because the
Prom this evidence it appears (1) that soon after Mrs. Cox got in her buggy for the purpose of driving across the track, and continuously until her horse became frightened, the engine was making the same quantity of noise and emitting the same amount of steam; and that Mrs. Cox with full knowledge of this fact left a place of safety and attempted to drive across the track without first requesting the persons in charge of the engine to remove it further from the crossing or so- adjust it as that it would not make so much noise or emit so much steam. (2) That the fright of her horse was not discovered by the persons in charge of the engine until it was too late to remedy or remove the causes that frightened the horse, and that immediately after the horse became frightened he was caught and put under control. (3) That the noise and emission of steam was not unusual or unnecessary, but could have been lessened if the persons in charge of the engine had been apprised that it was necessary to do so.
But, it is insisted that it was the duty of the persons in charge of the engine to have moved it a sufficient distance from the crossing to avoid frightening horses using the public road at or near where it crosses the railroad, or to have so regulated the engine as that it would not have made noises or let off steam in a manner calculated to frighten horses at the crossing. We do'not think that a railroad company should be required to remove its engine further from a crossing than is reasonably necessary to permit the free use of it for travel; but if an engine is standing close to a crossing, the trainnién upon being notified that the presence of the engine renders the'-crossing dangerous or unsafe for travel, should remove the engine, as far as can be done with safety to the train and the persons on or connected with it. The railroad has the right to use its tracks, and the public have 'the right to use the crossing, and each should act with' due regard for the rights of the other. The trainmen should accommodate the traveler- when it can be done with- safety, and the traveler should respect the
The instructions the court gave do not in all particulars conform to the law as we have announced it, but any error in the instructions was not prejudicial to appellant, because' we are of the opinion that her negligence in leaving her place of safety and in attempting to drive across the track was the proximate cause of the injury she complains of, and that the trial court should have given as requested by counsel for the railroad company a peremptory instruction to find for it.
The point is made that the train remained an unnecessary length of time on the crossing in violation of the statute, but there is no evidence whatever to support this contention; nor was a recovery sought on account of this alleged negligence.
Wherefore, the judgment is affirmed.