162 Ky. 403 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
L. F. Kenney was killed by one of appellant’s passenger trains while standing on the platform at Glencoe Station, and his administrator sues to recover damages of. appellant, alleging that his death was the result of negligence of appellant’s servants, in the operation of its trains. The jury returned a verdict for $10,000.
Decedent was a general merchant at Glencoe, in Gal-latin county, and about 43 years old. He left his place of
As above stated, this station platform between the passing and the main track was filled with rock, and extended from rail to rail and was 12 feet wide. The cylinder and cross-beam of an engine on one track extended over the platform 26 inches. "With a train at the same time on both tracks, a clearance is left of only 7 feet and 8 inches. Such a space is too close for comfort or safety between moving trains. The evidence shows that Kenney knew the train schedules. Of course, he knew, and all those on the platform knew, the Louisville train, the first to arrive, was a few minutes late, but there is nothing in the record to show that Kenney, or any of them, knew how much delayed was the Cincinnati train, or whether it would come up to the station before the Louisville train left. Anyhow, Kenney was interested in the Louisville train. His nephew was expected to be on it. Kenney’s purpose was to converse with him and perhaps get aboard, depending on the conversation. Naturally he was on the lookout for him in order to talk with him as quickly as possible. He, with all the others on the platform, moved over toward the main track as the Louisville train was coming in. Kenney was standing there with his back to the main track, and close to it in order to get a better chance to see his nephew through the car windows of the Louisville train. "While in this position, and as the first train was just stopping, the Cincinnati train came in, and, as it is testified to by many of the witnesses, at an unusually high and dangerous rate of speed, and without any warning of its approach. Kenney was hit by it in the side by the projecting cross-beam and instantly killed. His body was knocked over on the platform and was picked up 30 feet from the place where he
ín onr opinion there was a question of fact as to the speed of the train, and as to the blowing of the station and road crossing whistles. Anyhow, there were certainly two questions of fact which properly should have been and were submitted to the jury, and the first is, whether the means employed were reasonably effective or sufficient, under the circumstances of this case, and considering the nature of the platform, to warn those on it of the approach of the train. No question is raised as to their right to be on the platform at the time. Those in charge of the train had a clear view of the platform for 1,500 feet. They knew and could see the other train was coming to a stop on the siding, and that its presence narrowed the narrow platform. They knew how the platform would be still further narrowed by the occupancy of the main track by their train. They could see how the platform was crowded, and that the attention of those there was taken by the other train just arriving, and how its noise would render it unlikely that they would hear the approach of the coming train. If the jury believed from this evidence that the station platform was an unusually dangerous one by reason of these facts, it was the duty of the appellant to use some reasonably effective means other than the station or statutory signals to avert the danger, and warn those on the platform of the approach of the train, which killed decedent, and its. failure to give such other warning was actionable negligence. C. & O. v. Gunter, 108 Ky., 362; C., N. O. & T. P. Ry. Co. v. Champ, 31 Ky. L. R., 1057; Southern Ry. v. Thacker’s Admr., 156 Ky., 483.
As stated in the Gunter case.
“The care required of the company must be commensurate with the danger. Where it has created an extraordinary danger, it is • required to exercise extraordinary care; and what is due care in the particular ease must depend upon the existing state of circumstances at the time of the injury, and it is a question for the jury to decide.”
It is true these cases were for injuries at public road crossings, but the travelers were licensees, as in' the case at bar, and, as stated in the Champ case:
See also L. & N. v. McNary, 128 Ky., 408.
Likewise, it is a question for the jury as* to whether the deceased, as a licensee, was guilty of such contributory negligence as to preclude a recovery when, according to appellant’s evidence, and by inference drawn from the evidence of one or two of appellee’s witnesses, the deceased, while looking into one jtra'jn, inadvertently stepped back too close to .the other track and before those operating the train approaching on that track .could warn him, or avert the killing. Lewis’ Admr. v. Bowling Green Gas Light Co., 135 Ky., 611, 117 S. W., 278, 22 L. R. A. (n. s.), 1169; Conway v. L. & N., 135 Ky., 299, 119 S. W., 206.
We have examined the instructions .carefully and are impressed that the relative duties of the parties and the questions of fact were fairly submitted, with the proper application of the principles of law pertaining thereto. As to the measure of damages, the instruction differs somewhat from the approved form in such cases. The jury were told “and in estimating the damages, if any, they should consider only the loss of power of the deceased to earn money.” Ordinarily, mere verbal inaccuracies are not prejudicial, but in order to have a uniform application of the law throughout the State, it is the .better practice for courts to instruct juries in the identical words which have received the approval of this court. The approved form is to award “such damages as you may believe from the evidence will reasonably and fairly compensate decedent’s estate for the destruction of his power to earn money, not exceeding, etc.” But we are unable to see that appellant has been prejudiced by the words used in the instructions given, or the failure to use the approved form.
The court refused to give an instruction offered by appellant to the effect that, although the servants in charge of the incoming train saw Kenney in a place of danger, yet they had the- right to believe that he would move out of the way of the train and into a place of safety, and that this presumption continued until the
Tbe judgment of tbe lower court is affirmed.