139 Ky. 186 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
Appellee’s intestate, Henry J. Street, and W. I). "Wooten were driving in a buggy along a road parallel with a railroad track of appellant, in the village of "Upton, on the afternoon of June 13, 1907. As they approached the point where the road forks — one road leading over the track of appellant, and the other leading west away from its track — they discovered a train on the crossing." Street, who was driving, stopped his horse at the fork and at a point about 40 feet distant from appellant’s nearest track on the road crossing. The head of the horse was turned toward the road leading away from the crossing. As soon as the horse stopped, Wooten stepped from the buggy, and immediately thereafter the horse became frightened and ran away. Street was thrown from the buggy, or he jumped from it, and was fatally injured, dying a few hours later.
Appellee, as administratrix of the estate of Street, filed suit in the Hardin circuit court, against appellant for $30,000.00 damages for his death. The negligence is stated in the petition, as follows: •‘She says that the Louisville & Nashville Railroad Company is a corporation and common carrier created by an act of the Legislature of Kentucky, with power to sue and be sued under said corporate name, and that its chief lines of roads run through the said town of Upton, and that at the time and place aforesaid defendant’s agents and servants did, with gross negligence, frighten a horse attached to a buggy in which said decedent was sitting, and did by such
During vacation and before defendant’s motion to make the petition more specific was ruled on, the plaintiff filed an amended petition, by which she undertook to specify the acts of negligence complained of. This amended, petition alleges: “This plaintiff, in order to make more specific the allegations of her petition, as defendant asks, says that at the time that the horse of her husband and intestate was frightened and ran, as alleged in her original petition, her said intestate was sitting in his buggy in a public street, which was also a public road and pass-way in the town of Upton, and said town lies on both sides of said track, and wás very near the place where said street and road crossed the track of defendant on level or grade crossing; that her said intestate was compelled to cross said track to reach his place of business, and also to reach the stable and owner of buggy and horse, and when he got to the place where his horse was frightened the said track and ■ track crossing were blocked by several of defendant’s trains which prevented his passing over the track; that said town had a population of 300 people, all of whom were accustomed to use the track at and near the crossing, as defendant and its agents and servants well knew at the time, and that defendant and its agents did illegally permit said crossing to be obstructed as áforesaid by its trains for 40 minutes, an
Appellant’s motion to strike'out so much of the pleading as alluded to the obstruction of the crossing for an unnecessary length of time was overruled. As the pleadings did not then disclose but that the obstruction contributed in some part to the injury to the intestate, the motion was properly overruled. However, on the trial it developed that decedent had but driven up to the point in the road whence his horse began running but a moment before the incident, in fact just long enough for Mr. Wooten to alight from the buggy. Perhaps it was decedent’s purpose to have then crossed the railroad track had it been clear, but so far as he was concerned it does not appear to be material how long the train had been standing there, as the length of time it had comsumed in that position contributed nothing to his injury, did not cause his horse to become frightened, and therefore had no place in the evidence. The fact that the train at that time so obstructed the crossing as to prevent dece
There were five trains at Upton on this occasion. The one that was charged-to have occasioned the injury was No. 32, a local freight train with 25 or more cars.' It occupied the north end of the passing track. Immediately behind it, within 50 feet or less, was another train called No. 12. The caboose of No. 32 was then within a few yards of the engine of .No. 12. The two trains completely occupied that track, and in addi!ion some part of the switch ahead of No. 32. In order to make room for another train on the main track to pass that switch No. 32 had to change its-position. Those in charge of it claim that in attempting that movement it was endeavoring to couple up a cut of three cars at its rear belonging to it, and which had been cut off to open the crossing.; In executing the order for coupling the first effort was a failure. Another moved the cars back, so it is claimed, so that the rear of No. 32 would be forced upon the locomotive of No. 12 if not immediately stopped. In order to avert that the conductor of No. 32, who was standing near and directing the coupling, applied the emergency air brake, the effect of which was to force
Railroads and their prudent operation are as necessary as the use of horses and vehicles, and where the use of these two means of travel and carrying occur in immediate proximity, as they do in great numbers of cases, the rule of conduct imposed by law is that course dictated-by such considerations as allow the business to go on, but require it to be so done by the more dangerous of the two agencies, as not to unnecessarily endanger or impede the otfyer. And those who are using it, when the highway and railway are parallel, or cross, or are in the same immediate vicinity, each vehicle has the legal right to use its own road — the train upon the railroad, the horse and buggy on the highway. While the operators of trains must know that people have the right to use, and may in fact at that moment be using, the adjacent highway, the latter are also charged with the knowledge of expected conditions on the railroad tracks, which is to say the usual and ordinary conditions, as well as those extraordinary conditions which may arise out of ordinary use, and which are extraordinary in the sense that they do not happen frequently — nevertheless are likely to happen. Therefore it is, where
The first instruction told the jury, among other things, that if those in charge of defendant’s train knew, or by the exercise of ordinary care could have known, of the presence of deceased and the danger to him of the noises they were making (if such noises were unusual and unnecessary), the verdict should be for the plaintiff. The instructions should have been confined to a knowledge by the trainmen of the presence of the deceased with his frightened horse, in such proximity to the train as that its noises, not excessive or unnecessary, may have put him in peril. But, upon the plaintiff’s theory as to the facts, the first instruction was in substantially proper form.
The jury should have been instructed also that the defendant, its agents and servants had the right to make all usual and necessary noises incident to the prudent and careful operation and movement of the trains, and if they believed from the evidence that the noise made by the escaping air, and which frightened Street’s horse, was a usual and necessary noise made in the prudent and careful operation of the train, or if they believed that it was necessary, or believed by the conductor or servant applying’the emergency brake, in the exercise of a reasonable judgment,
The verdict and judgment in this case were for the plaintiff under instructions, and evidence, which, as discussed above, we believe were prejudicially erroneous. The judgment is therefore reversed, and cause remanded with directions to award the appellant a new trial under the proceedings not inconsistent herewith.