Louisville & Nashville Railroad v. Smith

| Ky. Ct. App. | Oct 27, 1899

JUDGE WHITE

delivered the opinion oe the court.

This is an action for damages for personal injury. Appellee, Smith, together with his wife and child, were driving along the highway just east of St. Matthews, in Jefferson county, going- in the direction of- Louisville. This highway, the Westport turnpike, runs along and parallel with appellant’s railroad for a considerable distance east of St. Matthews. Near where appellee was injured there are several crossings of roads over the railroad connecting with the Westport turnpike. The turnpike itself some distance east crosses the railroad.

The negligence alleged is that, while appellee was driving a team of gentle and ordinarily safe horses along this turnpike, appellant’s passenger train going east, and meeting appellee, blew the engine whistle unnecessarily, and unnecessarily load and shrill, and unusually loud and long, and carelessly and negligently, so that the noise frightened the horses of appellee, and they became unmanageable, and ran away, and injured appellee.

The answer denied negligence, and alleged that the whistle sounded was the usual signal required by statute to be given when approaching a public crossing, which the train was then doing; denied that the engineer in charge of the engine saw appellee, or saw that his team was frightened or restless; and pleaded that the accident was caused solely and wholly by the negligence of appellee. The case was tried before a jury, and resulted in a verdict and judgment for appellee in the sum of $2,500; hence this appeal.

The reasons for new trial complain that the court erred in refusing a peremptory instruction, and in refusing certain instructions asked by appellant, and in giving the instructions to the jury (these are numbered 1, 2, 3, 4, and 5), and of errors in the admission and rejection' of evidence prejudicial to the appellant.

Instruction No. 1 reads:

“The court instructs the jury that the law made it the duty of the defendant’s employes in charge of the engine mentioned in the petition, when not less than within fifty rods, or 825 feet, of the crossing of the railroad and the Westport turnpike, to give notice of the approach of the engine and train thereto by blowing the whistle or ringing the bell continuously or alternatively until the crossing was reached; and if the jury shall believe from the evidence that the signals from the whistle complained of by. the plaintiff were the usual and customary signals for the said crossing, given in the usual and customary manner, and that the defendant’s said employes did not see, and could not have known by the exercise of ordinary care, that continued whistling would cause plaintiff to lose control of his horses, and would cause them to run away, then the law is for the defendant, and they should so find.”

Instruction No. 2 is the converse of No. 1.

Instruction No. 3 reads:

“If plaintiff’s injuries were caused by his own negligence, the law is for the defendant, and they should so find.”

No. 4 is on the element of danger and 5 is a definition of ordinary care and negligence.

We are of opinion that instructions Nos. 1 and 2 are erroneous, in that a recovery is permitted if the jury believe that the employes in charge of the engine could have Jmown by the use of ordmary care that the continued whistling would cause plaintiff to lose control of his team. The instructions, so far as they permit a recovery for the whistling, by which the horses were frightened, if the employes saw that, if they continued to blow, it would cause the horses to be frightened, are proper, and the law; but there is no rule of law that would require employes in charge of an engine to discover the condition of a team or persons on a highway running parallel with the railroad. Lamb v. Old Colony Railroad Co., 140 Mass., 79" court="Mass." date_filed="1885-09-03" href="https://app.midpage.ai/document/lamb-v-old-colony-railroad-6421757?utm_source=webapp" opinion_id="6421757">140 Mass., 79, [54 Am. R., 449; 2 N.E., 932" court="Mass." date_filed="1885-09-03" href="https://app.midpage.ai/document/lamb-v-old-colony-railroad-6421757?utm_source=webapp" opinion_id="6421757">2 N. E., 932].

While it is not their duty to discover such things, yet if the employes do see the apparent danger, it then becomes the duty of such employes to use care to avert the injury. As to persons not on the railroad, the obligation to observe care begins when the danger is discovered.

The rule that requires a lookout duty in cities and towns and at public or private crossings does not extend to persons on a highway parallel to the railroad. We would not be understood to mean that a whistle could be blown, or other noises made; unnecessarily and uselessly, and there be no liability, if the employe did not see the danger. Where the law inquires the whistle to be blown or bell sounded, it may be done; or where, in the operation of the train, it be^ necessary, such blowing the whistle or ringing the bell may be done; but a negligent performance of the duty or a negligent exercise of the right can, in no event, be excused. Bittle v. Camden & A. Railroad Co., 55 N. J. Law, 615, [28 A., 305" court="N.J." date_filed="1893-06-15" href="https://app.midpage.ai/document/bittle-v-camden--atlantic-railroad-8270829?utm_source=webapp" opinion_id="8270829">28 Atl., 305]. Where the law requires the whistle to be sounded or bell rung before reaching a crossing, — as in this State, — and it becomes apparent that the whistle does frighten a horse or team, then, in the exercise of care, the employe in charge of the engine should cease blowing the whistle, and resort to the bell, as the statute provides ■either mode of giving warning for crossings. Unless the employe in charge of the engine saw that a team was frightened, he could give either of the signals required by statute that the rules of the company or custom requires.

Hudson v. Railroad Co., 14 Bush, 303" court="Ky. Ct. App." date_filed="1878-11-01" href="https://app.midpage.ai/document/hudson-v-l--n-r-r-7379625?utm_source=webapp" opinion_id="7379625">14 Bush, 303.

There is no question of contributory negligence raised by the pleadings. The answer presents no such defense.

There was no error in refusing to permit appellant to read the statute to the jury. It is the duty of the court to give to the jury instructions as to the law, and no proof of general laws is required The court properly • ref used to give the peremptory instruction asked, as there was testimony sufficient to submit the case to. the jury.

For the error in giving instructions Nos. 1 and 2 to the jury the judgment is reversed, and cause .remanded for a new trial and for proceedings consistent herewith.

(The whole court considered this case.)