154 Ky. 269 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
Thomas Parks was struck and killed, on June 20,1911, by a west bound train of the Louisville & Nashville Eailroad Company at a grade crossing in Woodford County. This crossing is at the intersection of the right of way of the Louisville & Atlantic' division of the railroad eom
The petition was filed in September, 1911. In October following, the defendant answered, and in addition to traversing the material allegation of the petition pleaded contributory negligence. A reply completed the issue. Thereafter, plaintiff filed an amended petition and caused summons to be issued thereon, and in this
The case is not unlike that presented where houses are built along the roadside near crossings and which obstruct the view of travelers, when passing along the highway and over crossings, and prevent them from seeing the approach of trains. The difference is in degree merely. A house would totally obstruct the view, whereas weeds, briars and underbrush might or might not obstruct it entirely, dependent upon the character and
It is in evidence that the train was rolling down grade at about 30 or 35 miles an hour and that the steam was shut off, hence it was making less noise than it would have made had it been running under steam. The rattle of the wagon in which he "was driving more than likely prevented decedent from hearing the train’s approach; and if the conditions, on account of the growth of underbrush, briars, etc., were such that his view of the railroad was totally obscured at that point, it can readily be seen that if, as is testified by some of the witnesses, no signal of the train’s approach was given, decedent was furnished no means of advising himself of the danger into which he was going. The evidence does not show that this road was a much frequented one, but, under the evidence as to the nature of the crossing and the conditions surrounding it, we would be unwilling to hold that it was not proper for the court to submit to the jury the question as to whether or not it was an unusually dangerous crossing; hence, the evidence relating to the nature of this crossing was competent.
It is next insisted that the verdict is not supported by sufficient evidence and is flagrantly against the evidence. Numerically the evidence offered by appellee to the effect that no signal of the train’s approach to this crossing was given is outweighed by the evidence for appellant bearing upon this point, but, as is frequently stated, the jury is the judge of the credibility of the witnesses, and they have the right to accept the settlement of a few witnesses xn preference to that of the many who may testify to the contrary. So that, while the weight of the evidence upon the question of signal or no signal is with appellant it is not so overwhelming in character as to justify us in holding that because of its preponderance the verdict should be disturbed.
It is next urged that the verdict is excessive. The evidence shows that the decedent had an earning capacity of something like $1,000 per year. His expectancy, according to -the life tables, was practically twnlve years. Under this proof, wTe wmuld not be warranted, were we so inclined, in holding that a verdict for less than $6,000
Lastly, it is insisted that the court erred in instructing the jury. The instructions given were copied from the case of L. & N. R. Co. v. Lucas, 30 Rep., 364, and, in slightly varying form, have been approved in numerous other cases where a similar question has been involved. We are of opinion that they fairly presented the issues as made by the pleadings and as warranted by the facts. While the instruction, defining the degree of care which should be exercised by decedent in approaching the crossing, might have been more explicit, we do not feel that it was prejudicial in the form given. The better plan would have been to cast upon decedent in terms the same degree of care which was imposed upon appellant in approaching the crossing’, but the language used in the instruction, while not the same, was in effect the same. The jury evidently did not believe that any signal of this train’s approach was given and that, as the train was merely rolling down the track as it were, the decedent drove upon the track without knowledge of its approach and met his death. As there was evidence from which such conclusion could be fairly drawn, we see no reason for disturbing the jury’s finding and the judgment predicated thereon. It is, therefore, affirmed.