224 S.W.2d 174 | Ky. Ct. App. | 1949
Reversing.
The appeal is from a judgment for $10,550 recovered by Leslie Feldhaus for injuries sustained when a *353 truck he was driving and a train of the appellant collided at a grade crossing on the Bardstown Road several miles south of Louisville.
The evidence for the plaintiff was that as the truck approached the crossing, the electric signal gave him no warning of the oncoming train; the bell was silent and the light was green. He testified there was no locomotive whistle blown or bell rung. There is other evidence that the train was running very fast. The defendant's evidence is that all the signals were given, that the crossing bell was ringing and the flasher light showing red, but the plaintiff, nevertheless, started across the track in the path of the train. Indeed, this is the preponderance and more persuasive evidence. The accident occurred about noon on a clear day.
The principal complaint of the appellant is that the instructions are erroneous in embracing the theory of negligence in the operation or the failure of operation of the automatic crossing warnings since the petition charged negligence only in relation to the operation of the train. The point is well taken. Chesapeake and Ohio Railway Company v. Coates,
We may go further. The instruction, particularly paragraph (c), follows closely that given by this same division of the Jefferson Circuit Court and approved in Kentucky and Indiana Terminal Railroad Co. v. Cantrell,
The judgment is reversed.