111 Ky. 729 | Ky. Ct. App. | 1901
Opinion or the court by
Reversing.
On February 24, 1899, Rasmus Breeden, appellee’s intestate, was killed by collision with a train of the Chesapeake and Ohio Railway Company at a, public crossing near Ducker’s, in Woodford county, on the track of the appellant, the Louisville & Nashville Railroad 'Company, and this action was brought to recover damages for MS’ death. There was a verdict and judgment in favor of the plaintiff for $5,000, and the defendant appeals.
The proof shows that the intestate and another mam were riding in a buggy on the turnpike, leading a horse behind the buggy. The pike crossed the railroad at an acute angle. The view of the track to the east was obstructed until they got substantially to it. It was a cold morning and there was some snow on the ground. The railroad approached the crossing in a curve, through a cüt, and the train could not be seen by the traveler on the pike until it rounded the curve, which was between 200 iand 300 feet from the crossing. Just as the buggy reached the track, it was struck by the train, hurling the occupants something like a hundred feet, and killing them
The rule as to the liability of the railroad company for allowing obstructions to the sight and hearing of the traveler 'to exist near highway crossings is thus stated in 2 Thomp. Neg. sec. 1507: “The true view seems to be that the railway company ought not to be held blameworthy for not re
The second and fifth instructions, taken together, authorized the jury to find for the plaintiff if the crossing was a dangerous one on account of the cut, and should not have been given. In lieu of these instructions, the court should have told the.jury that the defendant was not responsible for obstruction of view from the cut, and that if, by reason of such obstruction of view, the crossing was especially dangerous, then those in charge of the railroad and those traveling on the highway were .both required' to exercise increased care in proportion to the dang'er in the use of the crossing. Railway Co. v. Gunter (21 R. 1803) 56 S. W., 527; Railroad Co. v. Cummins’ Adm’r (23 R. 681) 63 S. W., 594.
As the case must be tried again, it becomes necessary to determine whether appellant is responsible for the failure of those in charge of the train to give timely warning of its approach. The railroad was the property of the appellant and was in its possession. By an arrangement with the Chesapeake & Ohio Railway Company that company also ran its trains over it. The written contract
The case of Louisville & N. R. Co. v. Chesapeake & O. Ry. Co. 107 Ky. 191 (21 R. 875) (53 S. W., 277), is relied on ■for appellee to sustain the ruling of the court below. In that case an employe of the Louisville & Nashville Railroad engaged in the maintenance, of the road was injured, the L. & N. Railroad paid the loss, and sued the Chesapeake .& Ohio to recover its share of the loss. The court determined that the Chesapeake & Ohio was liable to the
We are therefore of opinion that the court erred in instructing the jury that appellant was not liable for the negligence of those in charge of the train if they failed to give proper notice of its approach to the crossing.
Judgment reversed, and cause remanded for further proceedings consistent with this opinion.