Sights v. Louisville & N. R. R., 117 Ky. 436

Sights v. Louisville & N. R. R.

117 Ky. 436 | Ky. Ct. App. | 1904

Opinion op the court by

CHIEF JUSTICE BURNAM

Reversing.

The appellant, A. B. Sights, brought this suit against the appellee for damages for a broken leg, which he alleges was occasioned by his horses' taking fright and throwing him out of his buggy in consequence of! the negligence) of appellee’s servants in charge of one of its trains in the city of Henderson. Appellee filed a general demurrer to plaintiff’s .petition, which was overruled. It thereupon filed an answer, which was a traverse and a plea of contributory negligence. The trial court gave the jury a peremptory instruction to find for the defendant at the conclusion of plaintiff’s evidence, and he. has appealed.

The alleged acts of negligence on the part of the defendant consisted in driving its engine across one of the most frequented streets of the city of Henderson without! giving any signals of its approach, and in the failure of their flagman, who was stationed at the crossing in conformity with one of the ordinances of the city of Henderson, to give the warning of the approach of the engine until too late to avoid the injury; third, in causing the engine to emit violent and unusual noises when close to and in front of plaintiff’s horses. The testimony of appellant, which was corroborated by that of Mr. Johnson, who was driving with him, was to the effect that the railway company had maintained at their crossing of Second street.in the city of Henderson, in ■¡conformity with the requirement of a city ordinance, a flagman, whose duty required, when trains were approaching the street, that he should stand in the middle thereof, and *441give notice of their approach to travelers by waving h'is flag; that a small house had been erected between the tracks of the Louisville & Nashville Railroad Company and those of the Illinois Central Railroad Company for his accommodation, and when the way w.as unobstructed he usually retired to- his house; that on the date of the accident appellant was riding in a buggy pulled by two horses, which were being driven by Mr. Johnson, along Second street in ithe direction of the railroad crossing; that when they arrived at within two hundred yards of the crossing they discovered an engine backing a train across the street south, and they stopped their horses, and remained standing until the engine train had disappeared behind a train of box cars which were standing upon the track; that after' the train passed out of view, not seeing the flagman in the street, they ¡concluded that it was safe to approach, and drove their ¡horses slowly and cautiously towards the crossing; thalt when they had arrived at within about fifteen or twenty feet of the track of the Illinois Central Railroad Company they isaw the flagman Standing near his shanty, on the side of the street, with his back to the railroad, and his flag across his shoulders, holding it with both hands; that suddenly, and without warning of its approach, the engine reappeared from behind the train of box cars, and simultaneously with its appearance the engine emitted a succession of violent and unusual noises, and that at this time, for the first time, the flagman began to wave his flag; and that their horses became frightened at the noise of the train, and immediately turned around, throwing appellant out of the buggy, and running away; that as a result of the accident appellant’s leg was broken, and he was for some time confined to his .house, and unable to perform his duties.

This court has frequently held that it is the duty of *442a railroad company, in running its trains through a city, to give the usual and customary signals of its approach to street crossings, and that a failure to do so was actionable negligence. See L. & N. R. R. Co. v. Penrod’s Adm’r, 108 Ky., 172, 22 R., 73, 56 S. W., 1, 66 S. W., 1013, and the authorities there cited. “And when gates or a flagman have been maintained by railroad companies at the crossing of streets in cities and towns, the public have a right, when the gates are open, or the flagman not in his accustomed place of duty, to presume, in the absence of knowledge to the contrary, that the gateman or flagman is properly discharging his duties; and it is not negligence on their part to act on the presumption that they will not be exposed to a danger which could only arise from the disregard of his duties; and it is negligence for a gatekeeper or flagman to leave his post, knowing that an engine was approaching a crossing, without giving some signal of danger.”

See Evans v. Lake Shore & M. S. R. Co., (Mich.) 50 N. W., 386, 41 L. R. A., 223; Richmond v. Chicago & W. M. R. Co., 87 Mich, 374, 49 N. W., 621; Glushing v. Sharp, 96 N. Y., 676; C. C. C. & I. R. Co. v. Schneider, 45 Ohio St., 687, 17 N. E., 321; Woehrle v. Minnesota Transfer Co. (Minn.) 84 N. W., 791, 52 L. R. A., 348. It seems to us that it would be a very narrow construction to hold that the purpose of a flagman was solely for the purpose of preventing collisions upon the crossings, and not also to give notice to approaching vehicles, drawn by horses, of the danger which might arise from fright in the horses occasioned by suddenly coming in the immediate vicinity of engines. However, we do not mean to hold that an individual approaching a crossing of this character can rely exclusively upon the railway company doing its duty as to giving signals. He is bound to be on the lookout for himself, and to ex*443ercise ordinary care to prevent accidents. But we have reached the conclusion in this case that the demurrer was properly overruled, and there was sufficient evidence of negligence on the part of the defendant to have authorized the submission of the case to the jury.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion. Petition for re-hearing by appellee overruled.