Conway v. Louisville & Nashville R. R.

119 S.W. 206, 135 Ky. 229, 1909 Ky. LEXIS 252

• Court: Court of Appeals of Kentucky
• Decided: November 9, 1909
• Status: Published

Opinions

Opinion op the Court by

Judge Carroll

Affirming.

The appellant, South Conway, a boy about 11 years old, brought this action against the appellee railroad company to recover damages for injuries received in a collision between a horse he was riding and one of its trains which was going east. Upon the conclusion of the evidence for the plaintiff the jury, under the direction of the. court, returned a verdict in favor of the defendant company, so that the only question before us is whether or not there was sufficient evidence introduced on behalf of the plaintiff to take the case to the jury.

The negligence complained of in the petition as amended consisted in the failure of the train with which Conway’s horse collided to give at the' usual point, which was some distance west of the place th.e accident occurred, the statutory signals of its approach to a grade crossing, and the failure of the engineer in charge of the train to exercise ordinary care to prevent injury after the peril of Conway was discovered. The substantial facts shown by the evidence introduced for the plaintiff are these: South Conway, an intelligent boy, .lived with his father in a house situated on the north side of the railroad track a few yards from the point where a public road that runs east and west crosses the railroad at grade. On the south side of the railroad there is a road that intersects the county road a short distance south of the crossing, and runs west from the county road parallel with the railroad and a few feet distant from it for some 200 yards, and then goes down an embankment into a creek. On the day of the accident young Conway, desiring to water one of his father’s horses, rode it across the railroad, and thence on the road parallel with the railroad to the .creek. When he had watered the horse, and was on his way back home, riding along the road that runs by the side of the railroad, and at a point about 75 yards west of the crossing, a freight train, going at a high rate of speed in the same direction' that Conway was riding, came up behind him and frightened the horse, causing him to .run off. The horse ran towards the crossing, and reached it about the time that the engine did, and was struck by some part of the train; the collision throwing Conway off and breaking his arm. Conway had frequently ridden this horse to water along the same road, and had often met trains about the same place, but the horse had never before become frightened by them.

The law in. respect to the duty of trainmen when they come upon a frightened horse being driven or ridden on a parallel road is well stated in L. & N. R. R. Co. v. Smith, 107 Ky. 178, 53 S. W. 269. In that case the horse that Smith was driving on a road parallell with the railroad became frightened at the whistling of an engine, and ran away, injuring the driver. The lower court instructed the jury that they should find for Smith if they believed the employes on the train knew, or by the exercise of ordinary care could have known, that the whistling would cause the horse to run off. In holding this instruction erroneous the court said: “The instructions, so far as they permit a recovery for the whistling, by which the horses were frightened, if the employes saw that if they continued to blow it would cause the horses to be frightened, are proper, and the law; but there is no rule of law that requires employes in charge of an engine to discover the condition of a team or persons on a highway running parallel with the railroad. * * ' * While it is not their duty to discover such things, yet it the employes do see the apparent danger, it then becomes the duty of such employes to use care to avert the injury. As to persons not on the railroad the obligation to observe care begins when the danger is discovered. The rule that requires a lookout duty in cities and towns and at public or private crossings does not extend to persons on a highway parallel to the railroad.” In C., N. O. & T. P. Ry. Co. v. Bagby (Ky.) 29 S. W. 320, in considering a case very much like the one before us, the court said: “It would therefore seem to follow that an engineer cannot be reasonably expected or required to look out for, or see, animals at all distances on each side of a railroad track, nor give the danger signals and stop the train to prevent injury to those straying, .unless such animal is actually on the track, or else so near or in such attitude as would induce a person of -ordinary care and prudence to believe there was danger of a collision. In this case the engineer did not discover appellee’s horse until the train was too near to the private crossing to he checked in time to prevent the collision. * * * Conceding the horse might have been seen by the engineer at any point between appel ■ lee’s gate and the crossing, still he was not required to stop the train unless he had reasonable grounds to believe the horse would be permitted by its owner to go upon the track in front of the train. It seems to us the engineer was not in this case guilty of actionable negligence, for it does not appear that he saw the horse, or had reasonable grounds to believe it would go upon the track in front of the train until it was about to jump on it.” In L. & N. R. Co. v. Bowen (Ky.) 39 S. W. 31, the court, in considering a like question, said: “It would therefore seem to follow that an engineer cannot be reasonably expected or required to look out for, or to see, animals at all dis • tances on each side of the railway track, nor to give the danger signal and stop the train to prevent injury to those straying, unless such animal be actually cn the track, or else so near or in such attitude as would induce a person of ordinary care and prudence to believe that there was danger of a collision.” To the same effect, Kean v. Chenault, 41 S. W. 24; C. & O. Ry. Co. v. Pace (Ky.) 106 S. W. 1176; L. & N. R. Co. v. McCandless, 123 Ky. 121, 93 S. W. 1041.

The rule to be deduced from these cases is that the persons in charge of an engine are not under any duty to take notice of the conduct or fright of a horse on a parallel highway, or to stop or slacken the speed of the train to avoid a possible collision, unless it is so close to the railroad that the persons in charge of the engine could by the exercise of ordinary care discover that the horse is frightened, and the attitude of the horse or the immediate conditions are such as would lead a person of reasonable prudence to believe there was danger of a collision. The mere fact that the ingineer saw Conway riding along the parallel road did not require him to check his train, or sound any' signal or warning, or take any precaution to avert an injury at the crossing, unless he knew, or by the exercise of ordinary care could have known, that the horse was frightened and running away, and the circumstances were such as to induce a person of reasonable prudence to believe that he would attempt to cross the track in front of the train or come in contact with it at the crossing. But we do not find in the record any evidence or circumstance that would justify us in saying that the engineer was negligent in failing to take any action to avoid a collision with Conway. If we should assume — and it would be a mere assumption— that the engineer saw,. or in the exercise of reasonable care should have seen, the fright of the horse, there is a total failure to show any fact or circum stance from which it could be reasonably inferred that by the exercise of ordinary care, or any degrée of care, the engine could have been stopped or the speed of the train slackened so as to have avoided the collision after the fright of the horse was, or should have been discovered. It is therefore manifest that, so far as this charge of negligence is concerned, it was not supported by sufficient evidence to warrant a submission of the case to the jury.

The next question is: “Was the injury due to the failure to give the crossing signals? It is by statute made the duty of all trains to give the statutory signals of their approach to a grade crossing, and the failure to give these signals is actionable negligence for which a recovery may be had by any person injured by a breach of duty in this respect.. It is also true that travelers upon a public highway that crosses a railroad have the right to rely upon these signals for protection, although the failure to give the signals does not relieve the traveler from the duty of exercising ordinary care for his own safety; for, if by the exercise of ordinary care a traveler could see or hear an approaching train, he will be guilty of such contributory negligence as would defeat a recovery if he goes upon the crossing and receives an injury, although the signals were not given. Generally, the question of contributory negligence is for the jury, but a state of facts might' be presented that would authorize the court to take the case from the jury. To illustrate: If it were shown that by exercising ordinary care a traveler could discover the approach of a train, and he testified that he did not take any precautions to learn whether a train was coming or not, and failed to offer any evidence upon this point, he could not recover, although the statutory signals were not given, unless it appeared that after his peril was discovered the persons in charge of the train could, by the exercise of ordinary care, have avoided injuring him. Southern Ry. Co. v. Winchester (Ky.) 105 S. W. 167; C., N. O. & T. P. Ry. Co. v. Champ (Ky.) 104 S. W. 988, 31 R. 1054. This rule, however, would not be applied if the traveler was killed, and there was no evidence introduced to show that he failed to exercise ordinary care for his own safety. As we said in L. & N. R. Co. v. Clark, 105 Ky. 571, 49 S. W. 323, 20 R. 1375, where this point was under consideration: “In this case plaintiffs intestate is not here to testify, and there is an absence of evidence as to the cafe exercised by him in attempting to cross defendant’s track, but it cannot be presumed that deceased recklessly or carelessly imperiled his own life, or entered upon the track knowing of the train’s approach. If the presumption of negligence arises from the mere fact that deceased was killed on the track at a place where he had a right to be, it must necessarily defeat recovery in all such cases, unless it appear that those in charge of the train, after discovering the dangerous condition of the parties injured, could, by the exercise of ordinary care, have avoided inflicting the injury.” L. C. & L. R. Co. v. Goetz, 79 Ky. 447, 3 R. 221, 42 Am. Rep. 227; L. & N. R. R. Co. v. Taylor (Ky.) 104 S. W. 776, 31 R. 1142.

There is also a plain elementary principle of negligence law that to constitute actionable negligence there must be a concurrence of two things: First, negligence; and, second, injury resulting as a proximate cause of it. It matters not how negligent a person may be, his negligence, unless the injuries complained of.were the proximate result of it, will not authorize a recovery in damages. C., N. O. & T. P. Ry. Co. v. Zackary (Ky.) 106 S. W. 842; Hummer v. L. & N. R. Co. (Ky.) 108 S. W. 885, 32 R. 1315. Applying to the facts of this case the rules of law that the traveler must exercise ordinary care for his own safety, and that there must-be some causal connection between the negligent act and the injury complained of before there can be a recovery, let us see what care Conway exercised, and if there is any evidence conducing to show that the injuries received by him were the proximate result of the failure on the part of the persons in charge of the train to give the crossing signals. Conway had frequently ridden the horse along this road when trains were passing, but never before had he become frightened. He does not pretend to say that if the signal had been given he wonld not have ridden the horse as he was riding him, or that he wonld have remained at the creek, or that he would have ridden his horse away from the railroad, or that he would have taken any precautions whatever for his safety. The evidence leaves no room to doubt that Conway did not suspect that his horse would be • come frightened at the train, and consequently he did not feel it incumbent or necessary to take any care to look out for trains. For some unexplained reason the passing train, although operated in the usual way and making only the customary noises, frightened the horse, but this would as surely have happened if the crossing signals had been given. It was not the failure to give the crossing signals that caused the horse to run off, or that resulted in the injury to Conway. Both of these things were due to the fact that the horse became frightened at the passing train. To hold that the failure to give the crossing signals was the proximate cause of the accident, we would be obliged to infer, without any evidence whatever to support the inference, that if the signals had been given, Conway would have remained at the creek, or have avoided the road he was accustomed to go over, or have taken other precautions to prevent his horse from becoming frightened. These inferences, in addition to having no foundation in fact would be contradicted by the reasonable inferences that may be drawn from the evidence of Conway tending to show that, if he had known that the train was coming, he would have ridden his horse along the road as he had done many times before. If there was any evidence even tending to show that Conway would have remained at the creek, or not have ridden his horse along the parallel road, or that he would have taken any precautions for Ms safety, if the train had sounded the crossing signals, a very different question would be presented.. The mere, circumstance that the collision occurred at the crossing did not in any wise strengthen Conway’s ease. .If the collision had occurred 35 feet from the crossing, or if the horse in his fright had run into a tree or fence or over an embankment, the case for Conway would be the same, because if the negligence of the company in failing to whistle caused the horse to become frightened and run away, it was not important or material how or in what manner Conway was injured by the horse. So that, looking at the. question from any standpoint, it was necessary to connect the fright of the horse with the failure to whistle, and it is on this vital point that the case of Conway fails.

Counsel for appellant relies in his brief on a number of cases to sustain his contention that the failure to give the crossing signals was negligence and the proximate cause of the injury to his client*, but, in our opinion the cases cited do not sustain the position taken. In Rupard v. C. & O. Ry. Co., 88 Ky. 280, 11 S. W. 70, 10 R. 1023, 7 L. R. A. 316, Mrs. Rupard was injuied while riding horseback on the public road at a point where the railroad crosses the public road on an overhead trestle. The negligence complained of consisted in the failure of the persons in charge of the train to give any signals of its approach, to this crossing; it being shown that if the signals had been given Mrs. Rupard “could and would,-have kept at a safe distance from the crossing until the train passed it, whereby the injury would have been avoided.” The court said: “Injury may occur to the traveler at the crossing in two ways, namely: By a collision with him, or by scaring the horse that lie is riding or driving, whereby he is injured. It is the duty of the railroad company in approaching a crossing, if danger to the traveler in either of the ways above mentioned may be reasonably apprehended, to give timely notice of its approach, in order that the traveler may not only be warned not to come in collision with the train, but secure himself from injury by his frightened horse.” In this case, however, the court held that a peremptory instruction in favor of the railroad company was proper, because of the contributory negligence of Mrs. Rupard. In Chesapeake & Nashville Ry. Co. v. Ogles (Ky.) 73 S. W. 751, 24 R. 2160, Luiu Ogles was injured by her horse becoming frightened at the passing of a train on a trestle that crossed the public road upon which she was traveling. The evidence shows: “That when appellee and her husband had arrived at within about 60 yards of the crossing, they stopped their horse, which was a young and inexperienced animal, and listened for a signal, or any noise that would indicate the approach of a train. But, hearing none, they sent their brother-in-law, who was riding with them, forward to the crossing to see if he could discover any evidence of the approach of a train. He informed them that the way was clear. They then proceeded on their way, and while passing under the crossing appellant’s train of cars came suddenly from the south, running rapidly over the crossing, making a loud noise, which so frightened their horse that he began to tremble, jump, and make efforts to escape.” In Illinois Central R. Co. v. Mizell, 100 Ky. 235, 38 S. W. 5,18 R. 788, Mrs. Mizell, in approaching a railroad at a point where it was crossed at grade by the public road, on which she was riding, listened for the signal of the approach of a train, but, not hearing any, proceeded towards the crossing, when her horse became frightened at a train that suddenly came in view, causing'[her to sustain injuries for which she sought to recover damages. Putting the decision of the ease upon the ground that the failure to give the signals induced Mrs. Mizell to approach the track, the court said: “The principal ground relied upon by the appellant is that the alleged negligence in failure to blow the whistle was not the proximate cause of the injury; but if, by reason of that failure, the appellee went upon the track and her horse was there frightened by the approaching train, the jury, if they believed appellee’s witnesses, had evidence from which they were entitled to find that the negligence was the proximate cause of the injury, and that the damage followed asa continuous and natural sequence from the negligent act, and was a result which might have been foreseen and expected as the result of the conduct complained of, for it was to be expected that passengers on horseback might be traveling along the high - way.” These cases merely support the rule we have stated that, when the injury is traceable directly to the negligent act, there may be a recovery, but they do not hold that there can be a recovery when there is no proven or presumptive connection between the negligence and the injury.

In our opinion the evidence for Conway was not sufficient to take the case to the jury. Wherefore the judgment is affirmed.

Hobson and Nunn, JJ., dissent.