169 Ky. 114 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
This is a suit by the administrator of the estate of Gus Tolar, deceased, against the Illinois Central Railroad Company and its engineer, A. L. Hatch, to recover damages for the death of the decedent. The trial before a jury resulted in a verdict and judgment in favor of plaintiff for $10,000.00. The railroad company appeals.
The accident, which resulted in the death of Tolar, occurred at 5:23 P. M., December 14th, 1914, at what is known as “Prey’s Crossing,” in the northern limits of the city of Mayfield. At this point the Paducah and May-field road and the railroad intersect. Both the highway and the railroad pass through a cut within forty or fifty feet of the crossing. The embankment is from nine to twelve feet high and extends north for a distance of several hundred feet. Between the railroad and street are several residences and a business house. The train crew cannot see a traveler approaching the crossing until he is within about thirty feet thereof, nor can a traveler until he reaches that point see an approaching train.
On the occasion of the accident Tolar was driving an oil wagon belonging to the Indian Refining Company. Hitched to the wagon were two mules and a horse, the mules being abreast and the horse in the lead. The dis-'
Several witnesses for plaintiff testified that the whistle was blown at the yard limits, which are located about a half-mile from the crossing, and that after that time no further signals were given until the alarm blast was blown immediately before the collision. They also testified that at the time of the accident the train was going at from thirty-five to fifty miles an hour. It further appears that when the train left Paducah its schedule was changed so as to make its running time forty minutes behind the regular schedule. Some of the witnesses for plaintiff also stated that the engine bell was not being rung. An old engineer, who had formerly been in the employ of the defendant before he had been discharged because of a wreck, stated that the train could have been stopped in three hundred feet. Two or three witnesses stated that after the collision the train ran from one hundred to two hundred and fifty yards.
A large number of witnesses who testified for the defendant stated that the whistle was not only sounded at the yard limit post, but also for the crossing. In addition to these signals, several testified to hearing the alarm blast and to' the fact that the bell was ringing. The engineer says- that he observed Tolar’s team when three or four hundred feet away. He immediately sounded the alarm blast and put on his emergency brakes. When he first discovered the wagon on the track the train was moving at about twenty-five-miles an hour. At the time of the collision the speed of the train had been reduced to twelve or fourteen miles an hour. After the collision the wheels on all of the coaches had to be
“The court further instructs you that if you shall believe from the evidence that plaintiff’s decedent was drunk, or materially under the influence of intoxicants, when he undertook to cross defendant’s track on the occasion mentioned to you in evidence, then it was his duty to use such care in crossing said track as is usually expected of a reasonably prudent man when sober, under like or- similar circumstances; and the court further instructs you that if you shall believe from the evidence that plaintiff’s decedent Tolar had a defective hearing at the time -he undertook to cross said track, then it was his duty to use such increased care in crossing said track, as would be equal in measure to such defect. ’ ’
It is insisted that the instruction is erroneous because of the use of the words “or materially under the influ
The point is also made that the instruction under consideration is merely abstract and does not authorize any finding one way or the other, based on the facts submitted for the consideration of the jury. It may be conceded that where the deafness of the decedent, or other circumstances requiring increased care on his part, are involved, it is the better practice to incorporate such questions in the instruction on contributory negligence, and tell the jury that if the decedent failed to exercise such care and, but for this, would not have been struck and killed, they should find for the defendant. L. & N. R. R. Co. v. Gardner’s Admr., 140 Ky., 772; Southern Ry. in Ky. v. Sanders, 145 Ky., 679. However, we do not regard the court’s failure to do this in the present instance as prejudicial. When the instruction complained of is considered in connection with the other instructions given, we doubt not that the jury fully understood what would constitute, contributory negligence on the part of the plaintiff.
“If the crossing was used by many persons, or that by reason of curves in defendant’s track, or by reason of the embankment, mentioned to you in evidence, or other obstruction of the view of the railroad, or of the hearing of the approach of the train, * * *” etc.
This instruction is attacked on the ground that it specifies the physical conditions brought out in the evidence instead of submitting to the jury the simple question whether or not the crossing was unusually dangerous. While the trial court might, with propriety, have given an instruction similar to the oné directed by this court to be given in the case of Southern Ry. in Ky. v. Winchester’s Adm’x., 143 Ky., 38, we are not inclined to hold that the court’s reference to the physical facts rendered the instruction erroneous. An instruction containing language very similar to the above was approved by this court in the case of L. & N. R. R. Co. v. Lucas’ Adm’r., 30 R., 364, 98 S. W., 308.
Other alleged errors are relied on, but we do not regard them as of sufficient importance to authorize a reversal.
Judgment affirmed.