33 S.W.2d 640 | Ky. Ct. App. | 1930
Affirming.
There was a collision between an automobile driven by the appellee, Nall, and a train of cars operated by the appellant in the city of Paducah at the crossing on Eleventh and Norton streets. The accident happened on a dark, rainy January evening at about the hour of 7 o'clock. The railroad track is on Norton street, and appellee was approaching on Eleventh street. The railroad *555 track crosses Eleventh street at the street level or at grade. Appellee resided about three blocks from the crossing and was familiar with it, as he crossed it frequently both day and night. The railroad track runs from the Union Passenger Station to the roundhouse of appellant. The train of cars was not a scheduled train. Appellee claims that as he approached the track, he stopped, looked, and listened and saw no light on the train of cars which was backing across the track and he heard no signal of any kind. When he drove onto the track, so he testified, he was struck by the train, rendered unconscious, and his automobile was pushed down the track with him in it, or under it, for about 100 feet.
The trainmen testified that the train was on the crossing and that Nall ran his automobile into the train while it was passing the crossing. They testified positively that the engine bell was ringing. Nall approached the crossing, so he said, at a speed no greater than ten miles an hour, while the trainmen said they saw him approaching at a speed of about twenty miles an hour. They were proceeding with their train no more than four or five miles an hour, and when they saw him approaching they waived their lantern at him and called to him to stop.
It is insisted by counsel for appellant that there was no evidence of negligence on its part. In this they are mistaken. Appellant testified that he looked for a train and he did not see it, and he saw no light and heard no bell or other sound to warn him of the approach of the train. Mr. Broadway, who lived near by, heard the impact and went out. He saw no light other than the light of the automobile as it was pushed down the railroad track.
The duty of operators of a railroad train approaching a crossing at night is well defined in the case of Louisville
N. R. Co. v. Gardner's Adm'r,
It is insisted by counsel for appellant that under the authority of the case of Louisville N. R. Co. v. Curtis,
It is insisted that the jury should not have been allowed in this case to rest a verdict on testimony at variance with well-established and generally understood physical and mechanical laws. This doctrine was recently approved in the case of Commonwealth Life Insurance Co. v. Pendleton,
Judgment affirmed. *557