Louisville & N. R. R. v. Howerton, 115 Ky. 89

Louisville & N. R. R. v. Howerton

115 Ky. 89 | Ky. Ct. App. | 1903

Opinion op the court by

JUDGE PAYNTER

Reversing.

About four miles south of Shelbyvill'e the appellant’s track crosses at right angles the public road, forming what is known as the “Keene Crossing.” To the right of the crossing, ,in going from Shelby vi lie, there is a deep cut. The appellee and her daughter were driving a horse, proven to be gentle, from Shelbyville to their home, over the highway in question. As they approached the crossing, and as the horse’s fore feet were over the first rail, it became frightened, swerved to the left, and ran off, which resulted in the appellee being painfully injured. It. is claimed that the horse became frightened because the servants and employest *92of tlie appellant operated a hand car with gross negligence and carelessness. The plaintiff did not see the hand car, but, as the horse lunged, her daughter discovered the hand car, which was about 50 or 60 feet ,awav, approaching the crossing through the cut. There was not the slightest evidence introduced which tended to prove that the hand car was operated in an unusual way, or that it was making any unusual noise or sounds., The mere fact that the horse became frightened at the hand car, ran off, and injured the appellee, does not entitle her to maintain this action. She could only maintain it upon the ground that defendant’s servants or employes were guilty of negligence resulting in the injury. Hand cars are necessary in the conduct of the business of railroads. They must be used for the purpose of carrying tools and the section forces from point to point in repairing and looking after the track. It is impossible to run them in a noiseless manner. The fact that they are run, and that a horse became frightened by reason of their approach, or the noise which they make, which results in injury to the driver, does not give a cause of action. When trains are run in the ordinary way, and whistles and bells are sounded as the necessities of the business require, and a borse becomes frightened by reason thereof, and damages result therefrom, no action can be maintained therefor. Ohio Valley R. R. Co.’s Receiver v. Young (19 R., 158), 39 S. W., 415. Elliott on Railroads, volume 3, section 1264, says: “A railroad company is not liable for injuries resulting from horses becoming frightened upon a highway at the mere sight of its trains, or noises incident to the running or operation of a railroad.” It was held in McCerrin v. Alabama & Vicksburg R. Co., 72 Miss., 1013, 18 South., 420, that because a horse became frightened by the noise of a hand car running over .street crossings, and the person *93driving the horse was injured, the railroad company was not liable. The court said: “The defendant had the right to operate its car in the usual and customary way, and at a safe rate of speed, but had no right to convert it needlessly into a' terror-inspiring thing, and for such departure from propriety would undoubtedly be liable in damages for any injury caused by this negligence to one free from fault; tout rapidity of movement, noises, and sudden appearances are common incidents of the operation of railroads, and one complaining of hurt from these causes must show clearly a dephrture by the defendant from custom and propriety, to warrant recovery. Railroads operating trains and hand cars! have the right to make all reasonable and usual noises incident thereto, whether occasioned by escaping steam, griping of cars, etc. Persons Whose duties call them near railroads must know that such right exists. There is no law in this State requiring hand cars to give signals as they .approach crossings, and we can not say, as a matter of law, that a failure to do so is negligence.

For the reason that the plaintiff failed to show any negligence Whatever which produced the injury of which she complains, we are of the opinion that the court should have given the jury a peremptory instruction to find for the defendant.

Judgment is reversed for proceedings consistent with this opinion.

Petition for rehearing by. appellee overruled.