127 Ky. 144 | Ky. Ct. App. | 1907
Reversing.
On November 29, 1905, about 5:40 a. m., Clark A. Winchester was struck by an out-going train of the Southern Railway Company in Kentucky on the Hemlock Street crossing in Louisville, Ky., and instantly killed. This action was brought by his executrix to recover for his death, and, judgment having been entered in favor of the plaintiff against the railway company, it appeals.
It is charged in the petition that the Hemlock Street crossing was unusually dangerous; that it was much used; that the train that struck Winchester was running at a too rapid rate of speed; that there was no warning or notice of its approach to the crossing; that those in charge of the train did not have it under proper control and were not keeping a lookout; that there was no flagman, watchman, or gate at the crossing, as there should have been, as the crossing was in a thickly settled part of the city and was much used. By its answer the defendant controverted the allegations of the petition and pleaded affirmatively that the decedent lost his life by reason of his contributory negligence. This was controverted by the reply, which made up the issue.
The proof on the trial showed that the railroad crossing at Hemlock street was on a sharp curve, and that the right of way at this point was very narrow. One witness says it was only about 20 feet wide. Winchester was approaching the crossing* from the south, and as he came along the sidewalk a high fence shut off all the view until he got within a few feet of the track. When he came from behind
The proof for the defendant showed that it had on the engine a bell which rang automatically; that this bell was started when they left the yards, and was ringing when they approached the crossing. The train was a heavily laden freight running eight or ten miles an- hour upgrade, and the exhaust made considerable noise. There was no gate or watchman at the crossing. There was a gate at the Catalpa street crossing; one square away, and also a gate at the Woodland avenue crossing one square away in the opposite direction. At the Hemlock street crossing there was a bell at the top of a pole. The bell was about the size of an engine bell, and had an arm to it from which a wire ran to the Catalpa street crossing and another to the Woodland avenue crossing. When a train was approaching the watchman in the tower at Catalpa street would ring the bell by pulling the wire if the train was coming from that direction; and if it was coming from the other direction the watchman at Woodland avenue pulled the
It is insisted for the defendant that on this proof the court should have instructed the jury peremptorily to find for the defendant, and that under all the evidence no judgment against it should be permitted to stand. We cannot concur in this view. If the plaintiff’s proof was true, neither of the bells was ringing; and, while the weight of the evidence would perhaps show that the engine bell was ringing, it would by no means follow from this that adequate notice of th,é approach of the train was given. It is well known that light and sound travel in straight lines. Prom the sharpness of the curve, the light from the headlight of the engine would not be thrown upon the crossing until the engine was practically at it; and the headlight would therefore not give the traveler who was near the crossing warning of the approach of the train. As sound also travels in a straight line, this might reach a man who was'back from the crossing some distance where it would not reach a person who was near the crossing, as "Winchester was, and he would have no notice of the approach of the train, unless he might see it, and this he could not do until he was practically on the track. Under the evidence of the defendant this train was running over the crossing without any lookout; for neither of the men in the cab who were looking out saw Winchester, or could see a man after he would come in view at the crossing. This was in a thickly
The plaintiff introduced W. A. Thomas, and he was allowed to state ’as follows, over the defendant’s objection: “Q. Prior to the accident I will ask you if it would always ring when the wires were pulled. By the Court: Do you remember this occasion? A. I was not present at the time this happened. Q. State how the bell would act there before the accident. A. I have frequently noticed that bell to shake, and not to ring.” It also introduced Earnest Guthrie, and he was allowed to state as follows, over the defendant’s objections: “Q. I will ask you to state if you had noticed that bell before M'r. Winchester was killed, when trains were approaching and when the tower man was trying to operate it, whether it would ring. (Objected to by counsel. Objection overruled, to which defendant by counsel excepted.) Q. Tell the jury what you have noticed about that. A. Sometimes it would ring and sometimes it would not. Sometimes you would see the post vibrate, and the
The court at the conclusion of the testimony gave the jury these instructions: “ (1) The court instructs the jury that it was the duty of the defendant’s employes in charge of the train which struck Clark A. Winchester at the time and place mentioned in the petition to have the engine under reasonable control when it approached the crossing at Hemlock street, to keep a lookout ahe^d for the persons who were using the crossing, to give timely notice of the approach of the train by ringing the bell of the engine, to have the headlight burning, and to exercise ordinary care to prevent injury to persons. using the crossing; and if the jury shall believe from the evidence that the said employes failed to perform any of these duties, and that by reason, thereof the said Clark Winchester was struck by the engine and killed, then the law is for the plaintiff, and they should so find, unless they shall further believe from the evidence that the said Winchester was negligent, and thereby helped to cause or bring about his injuries, and that he would not have been injured but for his contributory negligence, if any there was. (2) The court instructs the jury that if they shall believe from the evidence that the crossing at Hemlock street was used by many persons, and that it was more than ordinarily dangerous to persons using it, then it was the duty of the defendant, running its trains over the said crossing, in addition to the usual and ordinary signals, to provide such signals as were reasonably necessary to give notice of the train’s approach
We see no objection to instructions 1 and 2; but the third instruction is defective, in' that it does not define the duties of the decedent in using the crossing. In L. & N. R. R. v. Cummins’ Administrator, 111 Ky. 338, 23 Ky. Law Rep. 681, 63 S. W. 595, we thus laid down the rule: “In using the railroad and the street crossing, both parties were required to exercise the same degree of care. It was incumbent on appellant to give such notice of the approach of the train to the crossing, to run the train at such speed, keep such lookout, and use such care to avoid injury to persons thereon as might usually be expected of ordinarily prudent persons operating a railroad under like circumstances. It was incumbent on the intestate to use such care as might usually be expected of an ordinarily prudent person, situated
The other matters complained of will perhaps not occur on another trial.
Judgment reversed, and cause remanded for further proceedings consistent herewith.