152 Ky. 6 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
O. W. Peek instituted suit against the Louisville & Nashville Bailnoad 'Company, in which he ©ought to recover damages for injuries sustained hy the overturning of one of said company’s railroad trains on the boundary line between Taylor and Green counties, at a point •half way between- Wright’s iStation -and Whitawood, on the night of July 18, 1911. At the time of the -accident, •plaintiff was in the employ of the defendant company in the capacity of flagman or rear brakesman. The specific negligence complained -of in the petition, is, “that the roadbed and' track of the defendant at the place where said wreck occurred was insufficient and -defective, -insecure and1 nn-safe for the purpose of running and -operating said train over the same,” that ©aid condition, of said roadbed and track was not known to plaintiff, hut was, or could, hy the exercise of proper care, -have- been known to defendant, its agents arid servants-; “that the defendant hy the -gross1 negligence and carelessness -of its -servants, agents and employes superior in authority to
It is insisted for appellee at the outset, that the failure of the ¡appellant company to. Controvert the affirmative allegations .of the reply warranted the recovery, in the ¡absence of any proof; ¡that it ¡amounted to> a confession, on the part of the company, of the negligence charged. We do- not so view the pleading. The 'answer had1 completely denied ¡every allegation of the negligence set np ¡in the petition, and this new matter, contained in the reply, was, in fact, but a repetition of the complaint ¡set up in the ¡original cause of action. There was no necessity for denying these allegations. The issue was joined, and tried out as joined.
Counsel for appellant .do not, in brief, complain of instructions, or of the admission or rejection of testimony. They rest their right to a reversal npon a single ground, viz: The failure of the court to sustain the motaov of appellant for a peremptory instruction made
The record discloses that, in the vicinity of the wreck, there is a vast water slhed emptying into Meadow creek, wthidh, for three or four miles at least, flows parallel anld adjacent to appellant’s right of way, and into 'Green River about two miles below where the wreck occurred. Across Meadow creek from the point of the wreck, and emptying into it, is a deep ravine, draining .some five or six hundred acres. On that side of the railroad track, the distance from the roadbed to the bluff or hill, is about fifty feet, and the land between the creek and the bluff is level; on the opposite side of the tracks the diffanoe from the roadbed to the bluff is about one hundred and fifty feet. The embankment, or elevation of the roadbed, along the creek is some eight or ten feet high. The creek is narrow and usually contains only a small amount of water. Three culverts, one ten by ten, and two six by ton, about one hundred yards apart, provide an outlet for the overflow in Meadow creek. The exact location of these culverts is not shown, except that the nearest to the washout is a quarter of a mile off. The derailment took place about 10 o’clock P. M. It was then, and had been, raining since the train left Lyons .Station, about 43 miles south of Louisville. Witnesses for appellee testify that the rain was a hard one, but not unusual; while those for appellant testify that no .such rainfall had ever occurred in that vicinity. The water in Meadow 'Creek rose, in volume and intensity, sufficiently to remove the railroad tracks, intact, from the crown of the roadbed over on the embankment for a distance of seventy or seventy-five yards along the right of way. The train ran upon the tracks
The third point in issue will be first considered. It is apparent that counsel for appellant conceived that, if this rainfall was unprecedented, the--company would be immune from liability for injury resulting from tbe washout which it caused and, therefore, directed his proof to the character of the rainfall and failed to enlighten the jury by evidence as to whether the consequences of the rainfall could have 'been foreseen and provided against by reasonable diligence. Non-liability for the results of -an -agency, causing an injurious accident, is premised, not upon the fact that such agency, or its manifestation, is unprecedented or unusual, but upon the fact that its consequences could not (have been anticipated and guarded against by the exercise of reasonable -care. The time, volume, or intensity of the rainfall was not within the control -of appellant. But, it knew of the -existence of this vast watershed near where this wreck occurred; it knew that -on occasions of excessive rainfalls, water would collect in this nairrow creek adjacent to' its right- of way; it knew that injury to its roadbed and tracks would be probable, if not inevitable, unless the outlets for this water, whether natural or artificial, were sufficient to carry it off. It was incumbent upon it to exercise that degree -of prudence to foresee, and use such reasonable means to prevent, injury to its roadbed and tracks from the water, as an -ordinarily prudent person would exercise and use under similar circumstances. This foresight and means of prevention of injury are- not such as would be suggested after the happening of the accident, but only squh as would be suggested to the mind of a very cautions man, who is without reasonable knowledge -that the accident is likely to occur.
To support the contention that appellant should have foreseen the consequences of this rainfall, appellee introduced a map and testimony showing the topography of the region near where the wreck occurred. This evidence fails to support such contention, for the reason that all of hi-s testimony had been to the effect that this was nothing more than an -ordinary rainfall, and the inference that the creek was sufficient to carry off the' water in ordinary rains is just as strong as the inference' that it was insufficient for that purpose. But, on cross-
Having decided adversely to the contention of appellant upon one of the grounds of negligence, it is unnecessary to notice the evidence, if .any, in support of the other two grounds of negligence.
Judgment affirmed.