McCain v. Louisville & Nashville Railroad

22 S.W. 325, 97 Ky. 804, 1893 Ky. LEXIS 148

• Court: Court of Appeals of Kentucky
• Decided: May 4, 1893
• Status: Published

Opinion

JUDGE HAZELRIGG

delivered ti-ie opinion of th'e court.

In December, 1890, the appellant and one. Greene were In a top buggy, and without listening or looking out for the train — both being engaged in conversation and driving along in a “careless sort of way” — drove close up to railroad crossing of the appellee, when they discovered that the train was right at them. The horse they were driving became unruly and ran across the track. When across and in apparent safety, the whistle was very sharply blowm, frightening the horse, so that he turned around. The buggy was thus upturned, and- McCain severely injured. He, therefore, sued the company, charging that its train approached the public road-crossing at a dangerous rate of speed, without giving the usual and customary notice of its approach, whereby the appellant was decoyed so near the crossing that his horse became frightened and ran away, and the appellant injured.

The defendant company answered, denying not only the specific charges of negligence set forth in the petition, but also denying generally that by any negligence on its part it frightened the plaintiff’s horse, caused it to run away, or caused or inflicted any injury to the plaintiff.

Upon the close of the plaintiff’s testimony, the court in■structed the jury to find for the defendant. Upon appeal to this court, that judgment was affirmed.

Thereafter the appellant instituted this action against the defendant, setting up as his cause of action the negligence of defendant’s agents in giving an unusual and loud whistle of its engine after plaintiff had crossed the track in safety, and thus frightening the horse and causing the i’rmry.

The injury thus complained of in this action is confessedly the same as that in the former suit, and we think the plea of res act judicata was properly sustained by the lower court. The whole transaction was put in proof in the first action, and each and every act of the defendant company, on the occasion of the accident, was alleged in the answer not to-be negligently done. The whole question of negligence, involving each and every act of the defendant, was, in fact, involved in the pleadings. But if not, they should have been put in issue by proper averments and pleadings. There was but a single transaction, a single cause of action, and there can be but one action.

Moreover, the plaintiff does not show himself entitled to any relief on the merits of his case. He shows no negligence on the part of the defendant, and as said in the former-opinion in the case involving the same testimony, the appellant and his companion showed an utter want of precaution in approaching the crossing.

The judgment is affirmed.