128 Ky. 486 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.
On September 18,1905, J. W. Hummer, while-walking across tbe track of tbe Louisville & Nashville Railroad at the Covington crossing in the outskirts of Franklin, Ky., about 9 o’clock in the morning, was struck and killed by the fast train from the south, and this suit was brought by his administrator to- recover damages for his death. The town boundary runs through the crossing; that is, a part of the crossing is in the town and a part outside of it. The town- is a place of between 2,000 and-3,000 people, and the crossing was much frequented. There were a number of
On this evidence the court instructed the jury-substantially as follows: (1) If the crossing was such that the persons on the track might reasonably be expected, and those in'charge of the engine negligently failed to keep a lookout or to run the train at such speed as might be usually expected of ordinarily prudent persons operating a railroad under similar circumstances,
The plaintiff insists that the first part of the first instruction is erroneous^ in that the duties therein required are predicated on the crossing being a place where the presence of persons .on the track was to be expected; and it is said that, it being a public crossing, this qualification was unnecessary. This part of the first instruction was taken from-instruction A, asked by the plaintiff; and the. rule is- that the plaintiff -can not complain of an instruction which he himself asked.
The second instruction has often beén approved by this court. The rule in this State is- that contributory negligence bars, a recovery unless, notwithstanding the negligence of the person injured; and after his peril is perceived, or might by ordinary care be perceived, in cases like this, the defendant’s servants could by ordinary care avoid injury to him. The traveler who by his own negligence puts himself in peril on a railroad track can not recover, unless the danger to him may be avoided by proper care on the part of the railroad after it has notice, actual or constructive, of the danger in which his negligence has placed him. If the train was by negligence running too fast, and the deceased was by negligence on the track, -the injury would be due to the concurrent negligence of both the parties, and in such a case he can not recover for the negligence of the railroad company because, but for his own negligence, he would not have
Instruction 4. is taken from the opinion of this court in the case of L. & N. R. R. Co. v. McCombs, 54 S. W. 179, 21 Ky. Law Rep. 1235. It is insisted that it is contrary to the rule in this State that instructions must not single out facts or give undue, prominence to them. "We do not think the instruction is liable to this objection. It has.often.been held by this court that, where the crossing is especially dangerous, it is incumbent on both the railroad company and the traveler to use increased care commensurate with the danger, and that the jury should be so instructed. It has also been held that a person who is intoxicated must use such care as a sober person of ordinary prudence would usually, exercise under like circumstances, and that the jury should be so instructed. L. & N. R. R. Co. v. Cummins, 111 Ky. 222, 63 S. W. 594, 23 Ky. Law Rep. 681; Covington v. Lee 89 S. W. 493, 2 L. R. A. (N. S.) 481, 28 Ky. L. R. 492; I. C. R. R. Co. v. Proctor, 122 Ky. 92, 89 S. W. 714, 28 Ky. L. R. 602. We do not see any substantial difference between the propriety of defining to the jury the care necessary where the crossing is especially dangerous, and where the danger arises; not from the character of the crossing, but from the infirmity of the person. Jurors would often be misled by the general form of the instruction, if the meaning which the law attached to the terms used under such circumstances was not pointed out to them.
■ The fifth instruction should not have been given; for it is incumbent on railroad trains to give proper-warning of their approach, and, although deaf persons
On the whole record we are satisfied that the jury came to the conclusion from the evidence that the death of the intestate was an unfortunate accident, due primarily to the fact that he was deaf and could not hear the train’s approach or the signals given, and that, hut for this, it would not have occurred.
Judgment affirmed.