157 Ky. 208 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing-.
This action was instituted by appellant, as administrator of the estate of Mrs. Martha Ann Haley, to recover of the appellee, Chesapeake & Ohio Railway Company and Bolivar Wesley, its locomotive engineer, damages for her death; caused, as alleged, by the negligent operation of one of the railway company’s passenger trains, of which Wesley was the engineer. Wesley died, however, before the case went to trial and the action was duly revived against his administrator.
• The appellees filed a joint and separate answer, containing a traverse and plea of contributory negligence; and the plea of contributory negligence was controverted
The question presented for decision by the appeal is: Was there any evidence, however slight, introduced in appellant’s behalf on the trial conducing to prove that the death of the intestate was caused by the negligence of appellee Chesapeake & Ohio Railway Company’s servants in operating the train by which she was struck and killed? If there was, the peremptory instruction should have been refused. C. & O. Ry. Co. v. Conley, 136 Ky., 601; Central Coal & Iron Co. v. Owens, 142 Ky., 19. In other words, to authorize a directed verdict for the defendant, it must appear that, admitting the plaintiff’s testimony to be true, and every inference fairly deducible therefrom, he has failed to support his cause of action. C., N. O. & T. P. Ry. Co. v. Rule, 142 Ky., 694; Southern Ry. in Ky. v. Goddard, 121 Ky., 567 The above rule for determining when the giving of a peremptory instruction is admissible, obtains in every action for death or personal injury, from negligence, whether the peremptory instruction be asked on the ground that there is no evidence conducing to prove the negligence of the defendant, or on the claim that the contributory negligence of the deceased or injured person is established by the evidence Tested by the foregoing rule, it remains to be determined whether the evidence introduced by appellant in the instant case authorized its submission to the jury; but before doing this it will be proper to mention certain undisputed facts explanatory of the manner in which Mrs. Haley lost her life.
The place of the accident was in the outskirts of the pity of Catlettsburg, a suburb called Oklahoma. Mrs. Haley was struck by a passenger train running from the east towards Catlettsburg. Within the eastern corporate limits of Catlettsburg, appellee’s line of railway passes over a long fill, east of which the railroad is crossed by three public roadways, and the decedent was struck by the train about 325 feet west of the crossing nearest the fill, she being at the time on the fill and with
In addition to the foregoing admitted facts, it was shown by the evidence introduced in appellant’s behalf that the train by which the decedent was killed was running at a speed of forty or forty-five miles per hour; that the view of the engineer and fireman of the train in approaching the place of the accident was unobstructed for about a half mile before the decedent was killed; that the train gave no signal of its coming either by the ringing of its bell or the blowing of its whistle, until it got within 200 or 300 feet of where it struck and killed the decedent, at which time the engine sounded the alarm whistle; that about the time the alarm whistle was given Mrs. Alexander, who was walking behind the decedent, discovered the train, which, according to her testimony, was then within 200 or 200 feet of them, and she
It is claimed in argument that the ruling of the trial court in granting the peremptory instruction was based on the rule announced in the cases of L. & N. R. R. Co. v. Trower’s Admr., 131 Ky., 589; Gresham’s Admr. v. L. & N. R. R.Co., 15 R., 599; Helm v. L. & N. R .R. Co., 17 R., 1004; I. C. R. R. Co. v. Willis’ Admr., 123 Ky., 636; L. & N. R. R. Co. v. Taaffe’s Admr., 106 Ky., 535; Craddock v. L. & N. R. R. Co., 13 R., 18; the last five cases being cited and considered in the Trowers case; but an examination of these cases will show the facts of each to be unlike those in the instant case In the Trowers case it was held that where one who knows and sees that a train is coming, attempts to cross the track just in front of it at a station, he is guilty of contributory negligence, barring a recovery, though it was a fast special running on the time of a regular train, and he may have thought it was the regular train which was to have stopped there. In Helm v. L. & N. R. R. Co., the injured person was a volunteer assisting the station agent. There were passengers to take the train at the station, but it failed to sound the whistle announcing its approach in time for the volunteer acting for the agent to get across the track to display the signal for it to stop for the passengers; nevertheless he attempted it and was struck and injured. A verdict for the defendant was directed because of the plaintiff’s contributory
In Craddock v. L. & N. R. R. Co. it appears that Craddock while on the platform of the depot heard a train whistle for the station and saw it coming, notwithstanding which he attempted to cross the track in front of iU but at a point where he, a licensee, had a right to cross; or at any rate where the railroad company was bound to anticipate his presence. The train was running at a negligent rate of speed but did not stop at that station; Craddock testified that he thought it was going to stop, but this, the court said “did not authorize the appellant to negligently throw himself in the way of it when he had ample warning of its approach and then claim damages for any resulting injury.”
It is manifest that the facts of the instant case do not bring it within the rule applied in the cases supra. Here the decedent did not get upon the track in front of an approaching train the coming or proximity of which was seen by or known to her. She was walking upon the railroad track where she and others living in the same suburb were accustomed and permitted by the railway company to travel in going from their homes to other parts of Catlettsburg and returning therefrom. The train by which she was killed approached from the rear and, according to the testimony of Mrs. Alexander, its coming was not known to her until communicated by Mrs. Alexander, at which time it was only two or three hundred feet distant. It is true if she had then stepped off the track and gotten into the ditch as Mrs. Alexander did she might have escaped collision with the train. The noise of the. alarm whistle given at that time, together with the excited manner of Mrs. Alexander and the character of the exclamation she employed to warn the decedent of the proximity of the train, doubtless threw the latter into such a fright as to confuse her mind and cause her to believe that her only safe means of escape from the impending danger was afforded by the walkway leading from the railroad track into the yard of Wells, which was only four or five steps distant, and in attempting to reach which she was struck by the train. Apparently there were two ways of escape open to her, one by getting off the track and fill into the ditch and the other by way of the walk-way into Wells’ yard. The attempt to escape by the walkway may have been and in fact was a mistake in judgment, but in view of the fact that there was evidence conducing to prove that she was put in a position of imminent danger by the negli
It is insisted for the appellees that there was no evidence that those in charge of the train discovered the decedent’s presence on the track in time to have prevented injury to her. It is true that no witness was able to testify, or did testify, that the decedent was actually seen on the track by those in charge of the train in time to have prevented her death, but this contention disregards the evidence furnished by them to the effect that the track was clear of obstructions for nearly a half mile east of the place of the accident; that there was nothing
“We have repeatedly held that in cities and towns where the population is dense, and a street is occupied by the tracks of a railroad company, the latter is bound to operate its trains, both day and night, at a moderate rate of speed, give the customary notice of their approach, maintain a proper lookout, and take such other precautions, as circumstances and the exercise of ordinary care, may require for thé security of life. L. & N. R. R. Co. v. McNary’s Admr., 128 Ky., 408; I. C. R. R. Co. v. Flaherty, 139 Ky., 147; L. & N. R R Co v. Potts, 92 Ky., 30; L. & N. R. R. Co. v. Cummins’ Admr., 111 Ky., 333; Rader’s Admr. v. L. & N. R. R. Co., 126 Ky., 722; L. & N. R. R. Co. v. Trisler, 140 Ky., 447. In I. C. R. R.*218 Co. v. Flaherty, supra, it appears that the plaintiff when struck by the train was walking on the railroad track, where persons were licensed to go and accustomed to use it, and although he could easily have stepped off the track and out of the way of the train had he seen it or been warned of its coming, it was held that neither this fact nor his failure to look for the train, authorized a peremptory instruction for the railroad company, as there was evidence conducing to prove that no lookout was maintained by the engineer or fireman of the train, and that by a proper lookout they could have discovered his danger in time to have warned him thereof and prevent the train from striking him; in other words, it was held1 in that ease that the question whether the plaintiff was guilty of contributory negligence was for the jury.
While appellee, by turning his head, would doubtless have seen the approaching train in time to have avoided his injuries, it cannot be said that his failure to do so was per se negligence; nor did such failure relieve appellant and those in charge of the train from the duty of exercising ordinary care to discover his presence, and like care to avoid injuring him. This duty should have been performed by maintaining a proper lookout from the engine and giving the customary signal of the approach of the train. If those in charge of the train failed to maintain a lookout or to give the necessary signals, such failure constituted negligence; and if by reason thereof appellee was injured by the train, he was clearly entitled to recover.”
In McCabe’s Admx. v. Maysville & Big Sandy R. R. Co., etc., 28 R., 536, we held that it is a well settled rule that greater care should be used in running trains through a town than is required to be exercised in approaching a highway or crossing in the country, because of the passing of persons on the street or the railroad track. Under such circumstances those in charge of the train must use ordinary care to keep a constant lookout for persons crossing the track and should reduce the speed of the train and give the usual signals to warn persons of approaching danger. In C. & O. Ry. Co. v. Montjoy’s Admr., 148 Ky., 279, Montjoy, an employee, placed a tricycle on the railroad track and started toward Olympia against the protest of his superior, who informed him that a fast train then due was a little behind
Because of the error committed by the trial court in giving, the peremptory instruction, the judgment is reversed and cause remanded for a new trial consistent with the opinion.