142 Ky. 658 | Ky. Ct. App. | 1911
Lead Opinion
Opinion op the Court by
Affirming.
On June 30, 1909, Bennett Y. Moss, a man about seventy-six years of age, while attempting to cross the tracks of appellant company at Fortson crossing in Mc-Cracken county, was struck by a train and killed. His administrator sued to recover for his death. The appellant company denied liability and pleaded contributory negligence. Upon these issues, the case was submitted to a jury, which returned a verdict in favor of plaintiff for $2,500. The company appeals.
The public road and the railroad approaching the crossing run in practically the same direction, the road crossing the railroad at an angle of about thirty-five degrees. In approaching the crossing in the direction in which deceased was going, his back would be toward the train for some distance before reaching the crossing, and almost so when passing over the crossing. The railroad enters a cut west of this crossing a few hundred feet before reaching it, and the highway also enters a cut west of the crossing for quite a distance before reaching it. Where they cross each other the cuts come together, and at that point they are from five to seven feet deep. At the time the accident occurred there were several box cars standing upon a side track at that point, and these, together with orchard trees which were growing upon a strip of ground between the railroad and the public road approaching this crossing, tended to obscure the view, so that it would be difficult for one approaching this crossing as deceased was to seé the train going in the same direction until he had almost entered upon the track. The testimony shows that a man in a buggy approaching the crossing could not see a train until within the right of way — his horse would be practically upon the track before he could get a view of the road. In other words, after he had come out upon the crossing he could see, and not until then. Those in charge of the train, and one other witness, who saw the accident, testify that de
The negligence relied upon to- support a recovery is that there were no signals of the train’s approach to this crosssing given. The company introduced a number of witnesses, who testify positively that the proper signals were given, while appellee introduced as many or more witnesses, who say that no signals whatever were given. It is conceded that the crossing in question is, because of its location, a peculiarly dangerous one. The locality is thickly peopled and the road much traveled. On this evidence the trial court refused to give a peremptory instruction, but submitted the case to the jury. And in this was undoubtedly correct.
Appellant’s chief complaint is that the court erred in defining the duties which deceased owed himself for his own protection in approaching the crossing. That, as this crossing is shown to be a dangerous one, deceased should have been required to exercise a degree of care for his own safety commensurate with that which the court told the jury the appellant company was required to use in approaching this crossing. Technically considered the instruction is subject to this criticism. It is not as full and explicit as it might have been. Still, we are of opinion that in the form in which it was given it was not misunderstood or misconstrued by the jury. For in it the jury is told that it was the duty of deceased, in attempting to cross the track, to use that degree of care that an ordinarily prudent and careful person would use -in undertaking to cross over the track under like or similar circumstances, and that if the jury further believed that the crossing was unusually dangerous, and deceased knew it, then it was his duty to exercise such increased care to avoid injury to himself as ‘was commensurate with the increased danger, &c. This instruction did not reauire of him to exercise increased care for his own safety in going over this crossing unless he knew it to be unusually dangerous. It did not put upon him the burden of exercising ordinary care to discover this fact. But if deceased lived in that community, as he doubtless;
The instruction on punitive damages was not authorized by the evidence. The sum and substance of all the-evidence is that the train which struck deceased was approaching this crossing under the usual rate of speed at which freight trains travel, and, according'to the evidence of appellee, failed to give the usual signals of its-
“The court must, in every stage of an action, disregard any error or defect in the proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. ’ ’
Upon the whole case we are of opinion that appellant had a fair trial and that substantial justice has been done.
The judgment is, therefore, affirmed.
Dissenting Opinion
Dissenting opinion by
I concur in the affirmance of this case, but dissent from the criticism of instruction number three, it was proper as was also the instruction authorizing punitive damages. Section 6 of the Kentucky Statutes says whenever the death of a person shall result from an injury inflicted by negligence or by wrongful act, then in every such case, damages may be recovered for such death; and when the act is willful or the negligence gross, punitive damages may be recovered. It is said in the opinion:
“All of the evidence shows that it was an extremely dangerous crossing, on a much traveled road, in a popu
If this be true, it was certainly a case of gross negligence, it was an act of reckless disregard for human life. Tf a punitive damage instruction is not authorized by the-facts above copied from the opinion, it is hard to conceive of facts which would justify such’ an instruction.
