페이지 이미지
PDF
ePub

servants superior in authority to him in operating the car. On the other hand, it is well settled that general allegations of negligence are not sufficient to authorize a recovery for a failure on the part of the master to use ordinary care to furnish the servant a reasonably safe place to work, or reasonably safe appliances. L. & N. R. R. Co. v. Irby, 141 Ky. 145, 132 S. W. 393; Monroe v. Standard Mfg. Co., 141 Ky. 549, 133 S. W. 214. Where a recovery is sought on these grounds, they should be pleaded. Plaintiff, while recognizing this rule, insists that it applies only to a case where the appliances are those with which the injured servant himself works. The rule, however, is not subject to such an exception. Certainly the master's duty is the same whether the defective appliances are used by the injured employé or by another employé, if, as a matter of fact, the defective condition of the appliances is the proximate cause of the employé's injuries. That being true, there is no reasonable ground for any distinction. Too many distinctions lead to confusion and uncertainty in the law, and it is better that this natural tendency should be checked rather than encouraged, especially in those cases where there is no substantial ground for the distinction sought to be made.

[3, 4] Plaintiff contends that, notwithstanding the fact that the petition did not rely on unsafe appliances, evidence on this question was heard without objection, and the case submitted to the jury, and therefore defendant cannot complain of the admission of the

ton's Adm'x v. Frankfort & Versailles Traction Co., 139 Ky. 57, 129 S. W. 322.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.

HARVEY v. ILLINOIS CENT. R. CO. (Court of Appeals of Kentucky. June 16, 1914.)

1. RAILROADS (§ 350*)-CROSSING ACCIDENTS -ACTIONS-QUESTIONS FOR JURY.

In an action for personal injuries sustained at a railroad crossing, evidence held to make a question for the jury as to whether the railroad employés in cutting a train in two for the purpose of leaving the road open for travel left the cars so that they obstructed a portion of the highway, and whether this resulted in injury to plaintiff.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*1 2. RAILROADS (§ 246*) OPERATION OBSTRUCTING HIGHWAY.

Under Ky. St. § 768, subsec. 5, providing public highway for more than five minutes at that a railroad company shall not obstruct any one time, if a train which has blocked a crossing for five minutes is not ready to move, the crossing must be cleared by cutting the train in two, or by some other method.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 758-760; Dec. Dig. § 246.*] 3. RAILROADS (§ 301*) - OPERATION - HIGHWAY CROSSING-RIGHTS OF COMPANY AND PUBLIC.

the railroad company and the public must each Where a railroad crosses a public highway, exercise the right to use the crossing in such a manner as to subject the other to as little inconvenience and trouble as is practicable un

der the circumstances.

[ocr errors]

evidence or the instruction based on it. Lexington & Eastern R. Co. v. Fields, 152 Ky. 19, 153 S. W. 43. That rule, however, has no application to the facts of this case. Here the defendant first made a motion to require the plaintiff to make his petition more specific. This motion was overruled. The evidence complained of was then heard. Under the rule announced in L. & N. R. R. Co. v. Irby, supra, this evidence was competent on the question of contributory negligence. Furthermore, defendant, at the conclusion of the evidence, asked the court to exclude all the evidence bearing on the question of unsafe appliances. This motion was overruled. The defendant then objected and excepted to all the instructions given by the court. Under these circumstances, defendant did all that it reasonably could to save the question, and it cannot be said that it waived its right to rely on the error of the court in authorizing a recovery for unsafe appliances, when that ground was not relied on in the petition.

Where a railroad crosses a public highway, the railroad company has no more authority than other persons to place obstructions likely to frighten horses upon or near the public road, unless necessary in the use, repair, or construction of the road.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 968-971; Dec. Dig. § 305.*] 6. RAILROADS (§ 246*) OPERATION OBSTRUCTING HIGHWAY.

[5] (3) The court also erred in authorizing a recovery for the ordinary negligence of defendant's agents superior in authority to plaintiff. Death not having resulted, he could only recover for gross negligence on their part. C. & O. Ry. Co. v. Laney, 154 Ky. 39, 156 S. W. 875; Union Iron Works Co. v. Where a freight train standing at a highBowling, 153 Ky. 683, 156 S. W. 124; Mil-way crossing was cut to leave the road open

When, under Ky. St. § 768, subsec. 5, a railroad company is under the duty of clearing a highway crossing, it must do so in such a manner that the entire right of way shall be open for travel, and it is not sufficient to merely open a space between the cars of a train over the part of the road most traveled, or to open a space wide enough to permit vehicles to pass. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 758-760; Dec. Dig. § 246.*] 7. RAILROADS (§ 332*)-CROSSING ACCIDENTS -LIABILITY-CONTRIBUTORY NEGLIGENCE.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 956; Dec. Dig. § 301.*] 4. RAILROADS (§ 301*) - OPERATION - HIGHWAY CROSSING RIGHTS OF COMPANY AND PUBLIC.

-

Under ordinary circumstances railroad trains have the right of way over other vehicles at highway crossings.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 956; Dec. Dig. § 301.*]

5. RAILROADS (§ 305*)-OPERATION - HIGHWAY CROSSING-RIGHTS OF COMPANY AND PUBLIC.

[ocr errors]
[ocr errors]

to travel in such a manner as to obstruct a part of the highway, it was not negligence for the driver of a horse which was gentle and accustomed to trains to attempt to cross, though the horse became frightened at the cars.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1079; Dec. Dig. § 332.*]

8. RAILROADS (§ 350*)-CROSSING ACCIDENTS -ACTIONS-QUESTIONS FOR JURY.

At a railroad crossing where there were three tracks, a freight train on the third track had been cut in two to leave the highway open to travel, but in such manner as to partly obstruct the highway. Plaintiff's horse, when on the second or main track, became frightened and refused to go on. A passenger train was approaching on that track, and plaintiff jumped out and succeeded in pulling the horse about half way across the third track when it backed sufficiently that the train struck the buggy, jerking the horse down, and causing plaintiff to fall and injure himself. Held, that plaintiff had a right, acting as a reasonably prudent man would under the circumstances, to make an effort to protect his property, and it was a question for the jury whether a reasonably prudent man would have attempted to hold the horse to prevent it from backing on the main track, instead of remaining, as he might, in a place of safety.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]

Appeal from Circuit Court, Muhlenberg County.

Action by P. D. Harvey against the Illinois Central Railroad Company. From a judgment on a verdict for defendant, plaintiff appeals. Reversed, with directions.

the horse he was driving, which the evidence shows to have been an ordinarily gentle horse, became frightened and stopped on the

tracks.

The plaintiff, in describing what occurred, said:

"My horse began to sorter stop when he got on the main track; didn't want to go in between those cars; and I urged her on until she got her foot on the first rail of the switch, and she stopped and refused to go any further. About that time the passenger train came around this curve. It had almost gotten on a straight track, and me and my wife looked around and saw the train, and, when we saw the passenger train approaching, I jumped out, and Mrs. Harvey jumped after me, and I drew the lines out of the harness as I went forward, and as we went on the crossing-it is a little downgrade, and heavy downgrade after you get on the edge-I kept pulling the mare until I got her half way across the switch, probably got to the middle of the track, and I couldn't pull her any farther. And as she began to back she cut the buggy north, and as she cut the buggy north the fast train struck one wheel of the buggy; I think it was the last coach of the passenger train that struck the wheel, and when it did that it jerked her down on her hunkers, and the bridle fell off, and I fell and struck on my back and turned over and rolled down the grade. When the train struck the buggy, it jerked the bridle off the horse, which caused me to fall. I was pull

ing the mare to keep her from backing into the train. I think the buggy wheels had passed the rails of the main track about 12 inches when the mare first stopped. The train, which was going at a high rate of speed, probably 60 miles an hour, did not whistle until it was within about 450 feet of the crossing, and the engine bell was not ringing. The end of one of head, about 3 feet over the traveled part of the the freight cars projected, including the drawroad; that is, that part of the road there that was generally used by wagons. If the mare had not backed, the buggy would not have been struck by the train. She backed into the train because she would not pass between the cars on account of them being so close. She didn't get scared at the passing train. There was a space of 15 or 20 feet between the cars where they had been cut in two at the crossing, and, if the mare had not stopped, I could have driven across in safety; but she scared at the freight cars standing on the switch."

Ernest Woodward, M. L. Heavrin, and A. D. Kirk, all of Hartford, for appellant. Trabue, Doolan & Cox, of Louisville, Taylor & Eaves, of Greenville, Browder & Browder, of Russellville, and C. L. Sivley and R. V. Fletcher, both of Chicago, Ill., for appellee.

CARROLL, J. In this action by the appellant, Harvey, who will be called the plaintiff, against the defendant company to recover damages for personal injuries alleged to have been sustained by its negligence, the jury returned a verdict for the defendant, and the plaintiff appeals.

[1] It appears that at a station called Nelson on its line of road there are three tracks running north and south; all of them being crossed at right angles by a public road running east and west. The center, track is the main track, the track on the east is a switch, and the track on the west a passing track.

On the afternoon of the day the plaintiff was injured one of the defendant's freight trains pulled in on the passing track for the purpose of letting a fast, north-bound passenger train pass on the main track. This freight train was cut in two at the road crossing for the purpose of leaving the public road open for travel. Shortly after the road crossing had been cleared the plaintiff, in company with his wife, attempted to go across these tracks on the public road in a buggy from the east to the west side, when

Other witnesses in behalf of the plaintiff gave substantially the same evidence.

On the other hand, the evidence for the defendant was to the effect that there was a space of about 40 feet between the cars at the road crossing, and that the ends of the cars were several feet from each side of the traveled part of the roadway. It also shows that the statutory crossing signals, as well as the signal for the station, were sounded by the passenger train at the proper places, and that the bell was continually ringing for the statutory distance, and until the road crossing was passed.

With the evidence in this condition, the trial court instructed the jury in substance that, if the persons in charge of the engine of the passenger train failed to give the statutory signal for the road crossing, and as a direct and natural result of this failure the plaintiff's buggy was struck by the train, and

he was injured, they should find for him in damages, but refused to give an offered instruction on the subject of the obstruction of the public road by the freight cars of the freight train that had been cut in two at the crossing, although the plaintiff in his petition charged that his injuries were brought about by the failure of the persons in charge of the engine of the passenger train to give the statutory signal, and also by the fact that the public road crossing was obstructed by the freight train in the manner heretofore stated. That the trial court was of the opinion that the obstruction of the road crossing in the manner testified to by the plaintiff and his witnesses was not actionable negligence is made plain by the fact that the jury were instructed:

the trainmen cut the train in two for the purpose of leaving the highway crossing free for travel. But whether they left sufficient space between the cars to comply with the duty to clear the crossing is involved in much doubt on account of the conflicting evidence on subject. And this situation brings to mind the question as to how much space must be left between the cars, and whether the entire roadway should be left unobstructed.

[3] Where railroads cross public highways as they do in innumerable places, these railroads and the public have each the right to use the crossing. The railroad trains have the right to cross the highway crossing, and the traveling public have the right, in the use of the highway, to cross the railroad track, and this right to use the highway by the public and the right to obstruct the cross

"That they should not find for the plaintiff on account of the alleged negligence of the defendant in leaving the coal cars at the road cross-ing by passing and standing trains must be ing mentioned in the proof."

exercised by both parties in such a manner as to subject the other party to as little inconvenience and trouble as is praticable under the circumstances.

[4] Of course, as trains must move on time and run in fixed places, it is necessary, under ordinary conditions, that they should have

On this appeal the grounds assigned for reversal are alleged error of the court in failing to instruct the jury on the subject of the obstruction of the crossing, and on the duty of the defendant to keep a lookout and run its train at a reasonable rate of speed. It is also argued that the jury should have the right of way over other vehicles at highbeen peremptorily instructed that the statu-way crossings; but this right to priority of tory signals were not given by the passenger | way must yield to the convenience of the train. highway travelers when, in the operation of a train, it is not necessary that it should occupy the public crossing, or when it becomes its duty to clear the crossing.

For the defendant it is said that the court should have directed a verdict in its favor, upon the theory that, if the crossing was partially obstructed, as claimed by plaintiff and his witnesses, the plaintiff knew of this obstruction before he attempted to cross the tracks, and therefore he should not have made an effort to cross without first

[5] These crossings are a part of the public road and the traveling public have the same right to the use of the entire roadway at points where it crosses a railroad as they do at other places on the road, except when it is lawfully blocked by trains; and railroad companies have no more authority than other persons to place obstructions likely to frighten horses upon or near to a public road, unless the placing of the obstruction, whatever it consist of, is made necessary in the use or repair or construction of the road.

[2] It is provided in section 768, subsection [6] It is true that, with few exceptions, the 5, of the Kentucky Statutes that a railroad public roads in this state are much wider company "shall not obstruct * * any than is necessary for the ordinary travel, public highway or street, by cars or trains, and it is customary for the traveling public for more than five minutes at any one time." to use only a part of the roadway for travel, This statute, which is merely supplementary this part usually being on or near the cenof the common law forbidding the unreason- ter of the right of way of the road; but at able obstruction of highways, is, we think, the same time the public have the right to sufficient to impose upon a railroad company the use of the entire roadway, whether it be the duty of leaving unobstructed highway narrow or wide, and persons driving in vecrossings for a longer time than five minutes hicles or riding on horseback are not required by any one train. In other words, a train to confine themselves to that part of the may block a crossing for a period of not road that is most traveled. longer than five minutes at any one time; but when the five minutes have expired, if the train is not ready to move, the crossing must be cleared by cutting the train in two, or by some other method.

ing the trainmen that the crossing was partially obstructed, and requesting them to move the cars so that it would be entirely free, and that the injury to the plaintiff was the result of his efforts to force his horse over the crossing that he knew was partially obstructed.

The train in question in this case evidently intended to remain on this passing track, for

Keeping in mind the right of the traveling public to the use of the entire right of way of the road, we think that, when a train is under a duty to clear a road crossing, this means that it shall cut its cars in such a manner as that the entire right of way of the road shall be open for travel, and that it is

from the opinion, the plaintiff had seen the dead horse three or four hours before he was injured, at which time the horses he was driving became badly frightened at it, and it was admitted that the plaintiff, with knowledge of the presence of the dead horse and the fact that his team became badly frightened at it a short time before, attempted to force his horses to pass it, and, when they refused to do so, he commenced to whip them, thereby increasing their fright. As said by the court:

the cars over that part of the road that is | public road. But in that case, as appears most traveled or to open a space of say 15 or 16 feet, and wide enough to permit two vehicles to pass between the cars at the same time. If the right of way of the road is 16 feet wide, then 16 feet must be left unobstructed by the train, and so if the right of way is 40 feet or 60 feet wide. Cars standing on opposite sides of a public road and near thereto are naturally calculated to cause many horses uneasiness, if not fright, and therefore cars so left standing should not be permitted to physically obstruct any part of the roadway. This being our view of the duty of railroad companies in respect to the clearing of highway crossings at which trains have been cut in two, the question whether the defendant performed its duty in this respect, and this failure resulted in injury to plaintiff while he was exercising ordinary care for his own safety, should have been submitted to the jury under appropriate instructions. Missouri, K. & T. Ry. Co. v. Jones, 13 Tex. Civ. App. 376, 35 S. W. 322; Pittsburgh, Cincinnati & St. Louis R. R. Co. v. Kitley, 118 Ind. 152, 20 N. E. 727; Peterson v. Chicago & West Michigan Ry. Co., 64 Mich. 621, 31 N. W. 548; Young v Detroit, G. H. & M. Ry. Co., 56 Mich. 430, 23 N. W. 67; 3 Elliott on Railroads (2d Ed.) § 1179e.

"It was a plainly discernible obstruction, and which, as well as the fact that the horses were danger prominently visible, the presence of afraid of it, was well known to him. In attempting to drive by it in the manner adopted, he and Lewis must be presumed to have understood the risk they ran and the probable consequences. These facts being admitted, the court should have decided, as a matter of law, that the presence of the dead horse on appelof appellee's injuries, but that they were causlant's right of way was not the proximate cause ed by his own negligence."

Under the evidence for the plaintiff, the defendant was guilty of negligence toward him in two respects, one, the failure of the passenger train to give the statutory crossing signals, and the other, the obstruction of the road crossing by the freight train; and he was entitled to recover damages if the jury believed from the evidence that the company was negligent in either of these particulars, and its negligence was the direct cause of the injuries complained of, unless the plaintiff, by his own negligence, forfeited his right to

Also to Chesapeake & Ohio Ry. Co. v. Lang's Adm'x, 135 Ky. 76, 121 S. W. 993, in which it appears that Lang, who was a section hand in the service of the company, was killed by a passenger train while he was attempting to remove a tricycle that he had been riding from the track. In that case the court said that the jury should have been instructed that, if they believed from the evidence that Lang jumped from the tricycle, and when he was at a point of safety, with knowledge of the approach of the train, he undertook to take the tricycle off the track, and thus lost his life, he took the risk.

Another case is Cox v. Illinois Central R. R. Co., 142 Ky. 478, 134 S. W. 911, 32 L. R. A. (N. S.) 831. In that case, in speaking of the care to be observed by a traveler in approaching a highway crossing on which a train is standing, it was said:

recover.

"If an engine is standing near a crossing that of travelers on it must be anticipated; and if the public have the right to use, the presence the engine is permitted by those in charge of

[7] It is strongly urged in behalf of the defendant that the plaintiff was guilty of such contributory negligence as would defeat a recovery, although it may have been re-it to make unusual or unnecessary noises, unmiss in the performance of both of the duties less the safety of persons or property require it, and the horse of a traveler is frightened we have mentioned. It insists that the evi- thereby, and injury results, the company will dence shows he knew how close the freight be liable, whether the persons in charge of the cars were standing together, and that the engine saw the traveler or not, or knew he wanted to cross, unless it be that the traveler crossing was partially obstructed, before he is guilty of such contributory negligence as attempted to cross it, and consequently would defeat a recovery. On the other hand, should not have made the effort. It is fur- when a traveler approaching a crossing near ther argued that, when his horse became horse becomes so much frightened as to cause which an engine is standing, and before his frightened and refused to go across, he accident or injury, sees and knows that it is should not have put himself in peril in an making noises or letting off steam, although eieffort to save the horse from danger by the he should not attempt to approach the engine ther or both may be unusual and unnecessary, passing train. In support of these proposi- or cross the track without notifying in some tions we are referred to the case of Louis- way the persons in charge of the train or enville & Nashville R. R. Co. v. Armstrong, 127 gine that he desires to cross, and that his Ky. 367, 105 S. W. 473, 32 Ky. Law Rep. 252, does this, and the persons in charge of the enhorse is liable to become frightened. If he in which it was held that the plaintiff de- gine can, with safety to persons and property, prived himself of the right to recover dam- prevent the engine from making noises or letages on account of the injury sustained when ting off the steam that alarmed the traveler, his horses became frightened at a dead horse should do so. and were calculated to frighten the horse, they But if they do not or cannot,

main in his place of safety or take the risk of | mare or buggy. Possibly neither would have attempting to cross.'

99

been injured; but the probabilities were that they would have been, and the plaintiff had the right to do what he believed at the time was necessary to prevent the impending danger.

A man situated as plaintiff was is neither expected nor required to abandon his property to danger when, acting in a reasonable way, he believes he can save it. He has a right, acting as a reasonably prudent man would under the circumstances, to make an effort to protect his property, and, if in so doing he is injured, it is a question for the jury to say whether, under all the circumstances, he acted in such a manner as a reasonably prudent man would have acted. 1 Sherman & Redfield on Negligence (6th Ed.) § 85a; Illinois Central R. R. Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368; Page v. Bucksport, 64 Me. 51, 18 Am. Rep. 239; Berg v. Great Northern Ry. Co., 70 Minn. 272, 73 N. W. 648, 68 Am. St. Rep. 524.

In Pedigo's Adm'r v. Louisville & Nashville R. R. Co., 68 S. W. 462, 24 Ky. Law Rep. 338, also relied on to sustain the contention that the plaintiff's negligence caused the injury of which he complains, the court found, after relating the facts conceded with the transaction, that:

"He voluntarily placed himself in the position where he was brought in collision with the cars without the slightest fault on the part of those in charge of the train."

We do not think any of these cases are controlling authority in this one, as the facts of this case take it out of the rule announced. In the Lang Case the railroad company was not guilty of any negligence, and in the Pedigo Case the injury was brought about by the reckless conduct of Pedigo at a time when the company was free from fault. In the Armstrong Case Armstrong knew the danger of attempting to force his horse by the obstruction and voluntarily took the risk. The Cox Case merely lays down general rules to be observed at grade crossings.

Here the mare the plaintiff was driving was gentle and accustomed to trains. When the plaintiff attempted to cross the track, he had no reason to anticipate that she would not go between the cars, or that she would become frightened at the cars standing near the crossing. Under these circumstances, he was not guilty of any degree of negligence in attempting to cross the tracks; but, on the other hand, the defendant, under the evidence for plaintiff, was guilty of negligence in the respects heretofore mentioned.

[8] Now was he guilty of such contributory negligence as would defeat a recovery because he received the injuries complained of when attempting to hold his mare after she became frightened? We think not. When

There are some cases that take a contrary view of this question; but we are not disposed to follow them. They do not seem to us to be sound in principle, and besides are not in accord with the weight of authority. Among these cases are Seale v. Gulf, Colorado & Sante Fé Ry. Co., 65 Tex. 274, 57 Am. Rep. 602; Chattanooga Light & Power Co. v. Hodges, 109 Tenn. 331, 70 S. W. 616, 60 L. R. A. 459, 97 Am. St. Rep. 844; Cook v. Johnston, 58 Mich. 437, 25 N. W. 388, 55 Am. Rep. 703.

For the error of the court in refusing to give an instruction on the subject of the obstruction of the crossing, the judgment is reversed, with directions for a new trial in conformity with this opinion.

the plaintiff heard the fast running passenger FORD v. HOUSE-HASSON HARDWARE train coming and found himself in the buggy, with a frightened horse, almost immediately

CO.

SAME v. JELLICO GROCERY CO.

on the track of the approaching train, he did (Court of Appeals of Kentucky. June 19, 1914.)

1. GUARANTY ($ 86*)-ACTIONS AGAINST GUARANTOR-PLEADING-ANSWER.

only what any sensible, prudent man would have done. He jumped out of the buggy and naturally and reasonably undertook to hold his mare to prevent the buggy from being struck by the passing train. He did not voluntarily, or with knowledge of dangerous conditions, assume any risk, nor did he, after being placed in a position of peril, act in a reckless or imprudent manner.

In an action on a guaranty of payment for goods sold to a third person, which provided that it should continue in effect unless notice of its discontinuance as to further liability was given to the seller, but that the guarantor's liability should not exceed a specified sum, an answer, alleging that the guarantors had paid the seller out of their personal funds on account of the indebtedness alleged a specified sum in full satisfaction and discharge of the guaranty, was indefinite as to whether the satisfaction by payment alleged referred to the debt of the buyer or to the guarantor's obligation as such, and the court should have required the answer to be made more definite or sustained a demurrer thereto.

It is true that when he got out of the buggy he was in a safe place, and that, if he had not attempted to hold his mare, no injury would have happened to him. He could have stood by and let his mare do as she pleased. He could have taken the chance of the mare being killed, and the buggy being demolished; but he was not, under the conditions as they appeared to him in the exercise of a reasonable judgment, obliged to stand quiet and make no effort to prevent injury to his and

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 100; Dec. Dig. § 86.*]

2. GUARANTY (§ 38*)-DISCHARGE OF GuaranTOR-PAYMENT.

Such guaranty was a continuing obligation payment on the buyer's account of the

« 이전계속 »