176 S.W.2d 699 | Ky. Ct. App. | 1943
Affirming.
This action was filed to recover damages for the wrongful death of the appellant is decedent at a railroad crossing and resulted in a directed verdict for the railroad company it the conclusion of the plaintiff's evidence.
The crossing is in the town of Williamstown, which has a population of about twelve hundred. There are *281 two tracks, one northbound and the other southbound. The crossing is wide enough to permit two cars to pass each other thereon and the evidence tends to establish that the roadway is of "blacktop" construction but this fact does not clearly appear. The usual and ordinary boards are laid at the the crossing to enable vehicles to pass over the rails. The evidence is rather vague and indefinite as to the location of the crossing but one witness puts it that it is 50 or 60 feet from the end of Main St. The roadway over the crossing leads to White's coal yard. Besides the coal yard, there are six or eight houses on that side of the crossing and, apparently, the remainder of the town is on the other side.
The decedent was driving his automobile slowly over the crossing when it was struck by the train. He had passed over the northbound track and the intervening space and was struck on the southbound track. From a point twenty feet east of the northbound track an approaching train can be seen 450 to 900 feet away, according to the estimate of various witnesses, there being a curve in the track north of the crossing. Consequently, insists the appellee, the decedent would have seen the approaching train in ample time to have avoided being struck had he looked and he was therefore guilty of contributory negligence as a matter of law in failing to look. Numerous witnesses testified that the whistle did not blow for the crossing but blew just as the automobile was struck. There was a complete absence of evidence as to whether the engine bell was ringing.
It seems that the trial court directed the verdict upon the theory that the decedent was guilty of contributory negligence as a matter of law in failing to look and observe the approach of the train. We find it unnecessary to consider the correctness of that ruling since it appears that the evidence failed to establish negligence on the part of the railroad company.
The evidence was insufficient to establish that the crossing was a public one. One or two witnesses testified that it was a public crossing, but this was merely a conclusion on their part. For a crossing to be a public one the road or street on which it is situated must be a public road or street established either in the manner prescribed by statute or by dedication, and if in the latter manner there must be an acceptance. Louisville N. R. R. Co. v. Survant,
But even though the crossing be regarded as a public one, the statutory duty of signaling imposed by KS 786, KRS
Affirmed.
Whole Court sitting.