220 S.W.2d 546 | Ky. Ct. App. | 1949
Affirming.
The appeal has been prosecuted from a judgment entered on a directed verdict in favor of appellee, Kentucky Indiana Terminal Railroad Co., Inc., the defendant below. The action was brought to recover damages for injuries sustained in a collision between the automobile owned and being driven by appellant and an engine operating in a reverse position pulling twelve freight cars, which was owned and being operated by appellee.
The accident occurred at a railroad crossing on United States Highway No. 31W within, but near the southerly limits of, the City of Louisville. 31W, commonly called Dixie Highway, is the main road *252 from Louisville to the South passing through Fort Knox. Traffic thereon, particularly between Louisville and Fort Knox, is perhaps heavier than on any other highway in the state. Appellant's mother was riding on the front seat and Mrs. Katheryn Lawrence and appellant's infant children were riding in the rear. They were driving from Valley Station to Louisville in a northerly direction on the four lane highway. A bus being operated by the Louisville Railway Company was traveling northerly in the easternmost lane. Appellant was driving in the westernmost lane for north bound traffic, slightly to the rear of the bus. Another automobile was proceeding ahead of appellant in her lane of traffic. South of the railroad tracks and to the east of the paved portion of the highway appellee had installed an electric flash signal to warn pedestrians and persons operating vehicles on the highway of the approach of trains to the crossing. The signal is seven feet ten inches in height and was in full operation at the time of the accident, but it was obscured from appellant's view by the bus which stopped approximately fifty feet from the crossing at a regular stop. Following the automobile immediately in front of her, appellant attempted to cross the railroad tracks. She testified that she was traveling approximately fifteen miles per hour. Other witnesses estimated her speed as high as twenty five miles per hour. When she discovered her peril she turned to her left, but was unable to avoid passing over the tracks. The collision followed. Appellant testified that neither the bell nor the whistle on the engine was sounded as a warning of the approach of the train to the crossing. She based her conclusion on the fact that she did not hear either, but would have heard both, had they been sounded. Mrs. Lawrence testified that she did not hear any bell rung or whistle blown, and Mr. Ernest S. Dobbins, who was driving south on the highway, testified that he did not hear the engine's bell ring or whistle blow, and he believed he could have heard the whistle if it had been blowing. Many witnesses for appellee testified that both the bell and the whistle were sounded for the crossing. The train was traveling between eight and ten miles per hour. The foreman of the train crew testified that he was sitting on the back of the engine, which, because the engine was in reverse position, would *253 be the forward end of the train, and on the south side thereof; that because of the houses obstructing the view of the trainmen they were unable to observe traffic on the highway south of the point of collision until they were practically in the highway's right of way. He stated that he looked for traffic both to the north and south and did not see appellant's automobile until "it was almost into us." He said that the engine came to a stop about fifty feet beyond the point of impact. The switchman stated that he was standing near the center and on the north side of the engine's tank. He looked in both directions for traffic but did not see appellant's automobile until the engine started over the intersection. He testified that it was impossible, by keeping a lookout to the south, to see beyond the bus until the observer was about midway of the crossing. The engineer testified that he was sitting in his cab, which was on the south side of the engine. He first saw appellant's automobile after he had started over the crossing. It was impossible to see down the highway until the observer was approximately in the middle of the crossing. He stated that he brought the engine to a stop in about thirty or forty feet from the point of impact. There was no evidence introduced to contradict the testimony of these witnesses.
Appellant contends that the Court erred in directing a verdict in favor of appellee because the evidence was sufficient to submit the case to the jury in respect to the negligence of appellee: (1) in failing to maintain a lookout; and, (2) in failing to give timely warning of the approach of the train to the crossing. Appellee contends that the Court properly directed the jury to find a verdict in its favor because the evidence discloses that it fulfilled its obligation to appellant in respect to every duty imposed by law upon it; and, if wrong in this contention, appellant was guilty of contributory negligence as a matter of law.
Our first inquiry, then, is in respect to the duties imposed by law upon a railroad operating within the limits of a municipal corporation of the first class, and then to determine whether appellee failed to perform such duties. If appellee did fail to perform any duty imposed by law upon it in respect to the operation of *254 its train at the crossing in question, and such failure, if any, on its part was the proximate cause of the collision, it would be liable to appellant for the injuries she sustained thereby, unless appellant was guilty of contributory negligence; and if under these circumstances, the evidence in respect to contributory negligence is conflicting the Court would be required to submit the case to a jury. On the other hand if appellee did not fail to perform a duty imposed on it by law, or, being negligent, if appellant was guilty of contributory negligence as a matter of law, appellee would be entitled to a directed verdict.
KRS
"Every railroad company shall cause signal boards to be placed and constantly maintained at each public highway where it is crossed by the railroad track at the same level, except that such boards need not be put up in any city unless required by the city authorities. * * *"
KRS
"Every railroad company shall provide each locomotive engine running over any of its lines with a bell of ordinary size and a whistle. The bell shall be rung or the whistle sounded, outside of cities, * * *. In cities such signals shall be given as the legislative body of the city requires."
KRS
"The courts shall take judicial notice of the ordinances of the city (of the first class), and the printed copy officially published by the city may be read as evidence in any trial in which the same may be competent as evidence without proof of the due passage and approval of the ordinances * * *."
The requirement of KRS
We think that there is no merit in the contention that the employees of appellee failed to maintain a lookout duty. It is extremely doubtful if the duty to maintain a lookout extends beyond keeping a watchful eye on the path of the train ahead and to territory in such close proximity as from which one might expect a traveler to proceed directly into the path of the train. But if the rule should be applied to the extent contended for, viz., that it was the duty of those operating the train to observe the highway for its entire length from the north to the south of the crossing, we do not see how such employees could have better fulfilled their obligation than the uncontradicted evidence discloses in this case. The foreman of the train crew was stationed on the forward end of the train and testified that he looked in both directions but did not see appellant's automobile until it had arrived at a place ten to twelve feet distant from the point of impact; another member of the crew was stationed midway between the engineer's cabin and the coal tender and he testified that he looked in both directions and did not see appellant's car until immediately before the impact; and finally the engineer himself stated that he was on the south side of the engine, was looking *258 ahead and to the south for approaching traffic and, did not see appellant's car until too late to avoid the collision. This evidence is uncontradicted. In approaching the crossing, the train passed a closely built up housing project, which for a certain distance beyond the parked bus, caused obstruction to the view from the engine south along the highway. The only thing that appellee could have done that it did not do was to stop its train before entering the crossing, and this, of course, it was not required to do. We are of the opinion that appellant failed to establish any negligence on the part of appellee, which could be reasonably calculated to constitute a proximate cause of the collision. That being true, it is unnecessary for us to discuss the contentions of the parties in respect to contributory negligence.
The judgment is affirmed.