Newport News & Mississippi Valley Co. v. Stuart's Administrator

JUDGE GUPPY

delivered the opinion oe the court.

The appellees, in separate suits in the Graves Court of Common Pleas, recovered judgments against the appellant, *499 and appellant’s motions, for new trials having been overruled it prosecuted appeals to the Superior Court of Kentucky, which court affirmed the judgments, and the appellant obtained appeals to this court, which appeals, upon request of parties, are heard together.

It appears that W. H. Stuart, Charles Stuart, Zephyr Wyatt and Robert Stuart attempted to cross +he railroad track in a wagon, and a collision occurred between the wagon, and a locomotive, resulting in the instant death of Robert Stuart and the injury of the others. Four actions were brought against the railroal company, in which it was charged that the collision was the result of the appellant’s negligence. One of the actions was. by the personal representatives of Robert Stuart, and one by each of the other p>ersons injure

The defense in each case was a denial of negligence, and .a plea of contributory negligence on the part of the injured parties. The pleadings, the evidence and the rulings of the court in each case were substantially the same, and will be disposed of in one opinion.

. The highway crossed the railroad a short distance north of the corporate line of Mayfield, Ky., and about fifteen or twenty feet south of a deep cut. The north end is about two hundred and eighty yards from the crossing. The whistling post is about two hundred and sixty-five yards from the north end of the cut. The railroad track is considerably elevated above the highway, and in crossing the grade is steep.

On account of the conformation of the surrounding country travelers upon the highway approaching this crossing from the city of Mayfield can not see a train coming from the north until they get within twelve or fifteen feet of the *500 track, but tbe engineer or firemdn on tbe locomotive can see the horses to a wagon from any point in the cut, and a little distance north of it, when the horses get within twelve or fifteen feet of the track. When the win'd is from the south, as it seems to have been on the evening of the injury, it sweeps through the cut and obstructs any sound coming from the north. The highway is. the only road leading from the north to Mayfield, and is a thoroughfare continuously used by people going to and returning from Mayfield.

W. H. Stuart, the father of Robert and Charles, was blind; Robert was thirteen years old, Charles was younger, and Zephyr Wyatt was fourteen years old. The train that collided with the wagon was due at Mayfield at seven minutes past 6 p. m.

The evidence tends to show that the parties Injured left Mayfield about half past 6, being past the time the train was due at Mayfield. The testimony conduces to show that the parties in the wagon thought the train had passed, and as they drove along their attention was directed to a freight train near the depot and south of the crossing, which train was moving to and fro. The old mían cautioned the children to look and listen; he listened. At a point shortly before reaching the crossing they stopped, thinking that the freight train was about to run up to or beyond the crossing. Seeing that it moved back, they drove on, so as to cross before it returned towards the crossing. They did not see nor did they hear the whistle or other sound of the train which was approaching from the north. Just as they got on the track, and when it was too1 late to turn back, they saw the train almost upon them; the driver whipped up the team, and as the rear end of the wagon was about to leave the track it was struck by the engine.

*501 Witnesses, who were just north of the cut and saw the train as it passed, testify that no whistle was blown at the Whistling post, and that none was blown until it was about to enter the cut, and-then only two short blasts were made in quick succession. (This evidence is contradicted by other evidence.) The train was one of the fastest on the road, its schedule time being about twenty-eight miles per hour; it was behind time, and there is evidence tending to show that it was running very fast.

Plaintiff’s evidence also tends to show that if the engineer and fireman had been on the lookout they could have seen the team in time to have stopped the train or so checked its speed as to have avoided the collision.

The evidence for the defendant showed that the usual sound of the whistle was made at the whistling post, and that the whistle was sounded about the time the engine entered the cut, and there is also evidence of several persons hearing the train coming, and, seeing the danger the parties were in, shouted to them, endeavoring to warn them.

The engineer and fireman swear that they did not see the team until the engine was within forty or fifty feet of the wagon, and that it was impossible to stop the train in time to avoid the collision.

Several grounds for a new trial are rebed on. some of which need not be noticed.

The evidence entitled the plaintiff to go to the jury, hence the peremptory instruction was properly refused. The second instruction is upon the question of contributory negligence, and is. in the usual form, with the exception that it submitted to the jury the question as to the intelligence of Eobert Stuart, the boy who was killed. There was in fact no question in the evidence on this point, as all the plaint *502 iff’s evidence showed that he was a remarkably bright and intelligent boy, and had driven on the road, hauling wood, etc., often, and, therefore, the jury could not have been misled or the defendant prejudiced by this portion of the instruction.

The third instruction is very seriously and earnestly objected to, which is in the following language: “The court instructs the jury that if they believe from the evidence that, by reason of the proximity of the crossing to the city of May-field and the number of the traveling public crossing there, or by reason of any obstruction of view of the railroad or of the hearing of the approach of trains, said crossing was exceptionally or unusually dangerous, then it was the duty of the defendant to use ordinary care to discover such danger, and, if necessary to avoid injury to travelers, to keep a flagman there to warn travelers of approaching trains, or to adopt and use some other reasonably safe and effectual mode of warning travelers of the approach of its trains; and if the jury believe from the evidence that defendant negligently failed to discover such danger, if any, or negligently failed to provide or use such means of warning as were reasonably safe and effectual to avoid injury to such travelers, and by reason thereof the injury to deceased occurred, then the defendant is liable unless deceased negligently contributed to such injury and death, as defined in instruction No. 2.”

The crossing in question was near a populous town; was the only way to the town for the people in the country north of it, and was continuously used by persons on horseback and in vehicles. On account of the elevation of the track above the highway, and the steep approaches to it. it. could not be crossed at an ordinary traveling gait; the deep cut and the conformation of the surrounding country were such *503 that a person could not see the approaching trains from the north until within fifteen or twenty feet of the track, and, if driving a horse, could not see the train until his horse’s head had almost reached the track and further under certain conditions, which were not infrequent, many persons, especially when riding in a wagon, could not hear the approach- of a train or its whistle.

Tinder the circumstances it was the duty of the company to use more precaution to avoid injury to persons using the highway than at ordinary crossings; and, those conditions existing, it was not improper to- require the company to have a flagman at the point to- warn travelers of approaching trains, or to adopt and use some other reasonably safe mode of warning travelers. (L. C. & L. R. Co. v. Goetz’s adm'r 79 Ky., 449 , 80 Ky., 103 .)

But it is still further urged that the instruction is erroneous because it required the company to use an effectual mode of warning travelers. In other words, that it made it incumbent upon the company to adopt some mode that would make it impossible for a person to be injured.

We do not think that the instruction could have been so understood by the jury. The evident meaning was that the means should be reasonably effective.

The other instructions given give to the plaintiffs no right to recover unless the defendant was guilty of negligence, and manifestly the jury believed the defendant guilty of negligence in each case.

The other instructions given were not prejudicial to the substantial rights of -appellant in either of the cases, and those asked by appellant were properly refused.

Judgment in each of the cases is affirmed.