Louisville & N. R. R. Co. v. Breeden's Adm'x.

Opinion or the court by JUDGE HOBSON Reversing. On February 24, 1899, Rasmus Breeden, appellee’s intestate, was killed by collision with a train of the Chesapeake and Ohio Railway Company at a, public crossing near Ducker’s, in Woodford county, on the track of the appellant, the Louisville & Nashville Railroad 'Company, and this action was brought to recover damages for MS’ death. There was a verdict and judgment in favor of the plaintiff for $5,000, and the defendant appeals. The proof shows that the intestate and another mam were riding in a buggy on the turnpike, leading a horse behind the buggy. The pike crossed the railroad at an acute angle. The view of the track to the east was obstructed until they got substantially to it. It was a cold morning and there was some snow on the ground. The railroad approached the crossing in a curve, through a cüt, and the train could not be seen by the traveler on the pike until it rounded the curve, which was between 200 iand 300 feet from the crossing. Just as the buggy reached the track, it was struck by the train, hurling the occupants something like a hundred feet, and killing them — 734 — both. The proof on behalf of the plaintiff tended to show that by reason of the obstruction the sound of trains approaching the crossing was deadened, and that the view was obstructed by not only a hedge on the turnpike and some buildings and trees standing on it, but also by a hedge and fence running along the railroad and ¡about 18 or 19 feet from the track. The hedge along the railroad had .been trimmed shortly before the collision, and, it. would seem, in its condition at that time was not a serious, obstruction,. But the crossing was exceptionally dangerous for both sight and hearing were obstructed. The-train was running, perhaps, 35 or 40 miles an hour, and,, according to the proof made by the plaintiff from a number of persons who were eye witnesses and near by, gave no signal at all of its approach, until it was near the-mouth of the cut, when the whistle was blown and the air brakes applied with much force, but too late to prevent the collision. The train was not on time, and the. proof is conflicting as to how much it was late'. The" ■proof for the defendant was that the signals of the approaching train were given, and that those in charge of. the train did not see the persons on the crossing o>r the buggy in which they were riding until they got within 50 yards of them. The evidence showed that the railroad was built about the year 1835, and was then run as a horse-line. The county road, on which the turnpike was after-wards built, was in existence when the railroad was located. The court instructed the jury among other things, as follows: “(1) If the jury believe from the evidence-that the crossing and immediate approaches on defendant’s right of way, about one mile west of Ducker’s Station, in Woodford county, Ky., where said Breeden was-killed, was at the time by reason of negligence and care — 735 — lessness of the defendant, Louisville & Nashville Eailroad Company, in a dangerous and unsafe condition, by reason of fences and other obstructions on the defendant’s right of way, at and immediately contiguous to, and in close proximity to said crossing, so as to imperil the lives of travelers oh said highway who were using ordinary care for their own safety, and that the defendant, Louisville & Nashville Eailroad Company, knew, or, by the exercise of ordinary care, could have known of its 'dangerous 'and unsafe condition, and that Basmus Breeden, while using ordinary oaire for his own safety in attempting to cross said railway, was struck and killed by an engine and train of ■cars running on said track under contract with the said Louisville & Nashville Eailroad Company, then said Louisville & Nashville Eailroad Company is liable; and the jury ought to find'for the plaintiff such sum in damages as they may believe will reasonably compensate the estate of Bas■mus Breeden for the loss, by the destruction of his life, of His power to earn money, not to exceed $25,000, the •amount claimed in the petition. But, before the jury can ■find for the plaintiff, they must believe from the evidence that the dangerous condition of the crossing and its immediate approaches was the proximate cause of the injury. (2) If the jury believe from the evidence that the ■crossing at which Easmus Breeden lost his life was formed by the Louisville & Nashville Eailroad Company building its railroad track across the county road where the turnpike now runs, and if the jury believe that at said time ■said road was a public county road, then it was the ■duty of said railroad company to so construct its crossing, and its immediate approaches, in such manner as to enable a reasonably prudent man, exercising ordinary care, to cross same with reasonable safety; and, if the jury be — 736 — lieve that the said crossing and its immediate approaches were so unsafe as to imperil the lives of persons traveling said road, and who were using ordinary care, on account of the condition of the crossing and its approaches, or on account of hedges, fences, and other obstructions on its right of way, which prevented the decedent from seeing or hearing the approach of the train while in the' exercise of his senses of sight and hearing, then the jury ought to find for the plaintiff as defined in instruction No. .i. But if the jury believe from the evidence that the said county road where the turnpike now runs was located1 after the time of the building of the railway, then it was-the duty of the authorities locating and building said road over said railway to have avoided the dangers, if any, to the traveling public, by reason of said embankment or other obstructions on defendant’s right of way, and the defendant is not liable therefor. This exemption, however, does not relieve the said defendant of the duty of keeping its immediate crossing and its approaches thereto, on its right of way in reasonably safe condition for travelers to pass over said railway; 'and, if the jury believe that the said crossing and the immediate approaches to same were in reasonably safe condition at the time of the accident, and said railway was constructed prior to. the time of the construction of said county road, the defendant is not liable, and the jury ought to so find. (3) The jury are instructed that the defendant, the Louisville & Nashville Railroad Company, is not responsible for any injury which may result solely from the operation of t'he Chesapeake and Ohio trains over the railroad1 in question; and that, if they believe from the evidence that the injury and death of plaintiff’s intestate was directly and proximately caused by the mode in which the Chesa — 737 — peake & Ohio train which struck him was being run, or by the failure of those in charge of said train to give reasonable and timely signal or warning of its approach, then they ought to find for defendant. (4) If the jury find from the evidence that, considering the nature and condition of the crossing in question, and its surroundings, those in charge of the train which killed Breeden gave such signal or warning of its approach as was reasonably sufficient to apprise thereof a traveler in the; vicinity of the crossing, who was himself in the exercise of ordinary care and prudence, they should find for defendant. (5) Although the jury may believe from the evidence that the crossing where Breeden was killed was a dangerous Crossing on account of the cut and turnpike surroundings, yet, if they further believe that the collision and killing could have and would have been avoided by the exercise of reasonable care and proper precaution on the part of the ■employes of the Chesapeake & Ohio Railway Company in the operation of the1 train of cars that struck the buggy and killed Breeden, then they should find for the defendant, unless they shall further believe from the evidence that the Louisville & Nashville Railroad Company were negligent and careless in the construction of said crossing and its approaches, or by permitting obstructions on its right of way, and which negligence and carelessness was the direct and proximate cause of the accident; in which case they ought to find for the plaintiff.” The rule as to the liability of the railroad company for allowing obstructions to the sight and hearing of the traveler 'to exist near highway crossings is thus stated in 2 Thomp. Neg. sec. 1507: “The true view seems to be that the railway company ought not to be held blameworthy for not re — 738 — moving such obstructions' to sight and hearing as may be reasonably necessary to the exercise of its franchises,— such as necessary buildings on its right of way, or the necessary standing of cars upon its side tracks near the crossings of public streets or roads; but that to allow obstructions to vision and hearing of a traveler to come or-to remain upon its right of way, which are not necessary to the exercise of its franchises, which can be removed at no great expense, — such as weeds, bushes, hedges, trees, embankments and the like, — is negligence as matter of law. But it can not be affirmed with entire confidence1 that such is the law.” After taking up and discussing a number of cases he concludes the subject with these words: “From the foregoing decisions we may extract the conclusion that for a railway company unnecessarily and negligently to permit obstructions to accumulate or remain upon its right of way, so as to obstruct the view of a traveler approaching its track at a public crossing, is negligence which will make the company liable for an injury to the traveler caused by a collision with its train, -which would have been averted had the view been unobstructed, provided the traveler is free from contributory negligence.” The railroad company is required in the exercises of its franchises to use such care for the safety of others as the circumstances demand for the security of life; that is, such care as may be. reasonably expected of a person of ordinary prudence in -its situation. Obstructions to the view of the traveler on the- highway endangering life, which, by the exercise of ordinary care should not be suffered to remain, -are improper, and where, by reason of them, an injury results, the company may be «held responsible. Railroad Co. v. Clark’s Adm’r 105 Ky., 571 (20 R. 1375) (49 8. W,. 1323). But cuts are necessary on all railroads. The cut through — 739 — which the train passed just before reaching the crossing in question was 23 or 25 feet deep, and the obstruction from the cut was, according to the testimony of the witnesses, the most serious, if not the real trouble. The railroad company was not required to remove an obstruction of this character. Obstructions from the conformation of the earth’s surface are. unavoidable, and the rule as to them is not affected by the fact that the railroad was built after the highway was established. The Legislature authorized the construction of the railroad, and, in the determination of its liability for obstructions of view, it is wholly immaterial which was established first, the railroad or the higway. The second and fifth instructions, taken together, authorized the jury to find for the plaintiff if the crossing was a dangerous one on account of the cut, and should not have been given. In lieu of these instructions, the court should have told the.jury that the defendant was not responsible for obstruction of view from the cut, and that if, by reason of such obstruction of view, the crossing was especially dangerous, then those in charge of the railroad and those traveling on the highway were .both required' to exercise increased care in proportion to the dang'er in the use of the crossing. Railway Co. v. Gunter (21 R. 1803) 56 S. W., 527; Railroad Co. v. Cummins’ Adm’r (23 R. 681) 63 S. W., 594. As the case must be tried again, it becomes necessary to determine whether appellant is responsible for the failure of those in charge of the train to give timely warning of its approach. The railroad was the property of the appellant and was in its possession. By an arrangement with the Chesapeake & Ohio Railway Company that company also ran its trains over it. The written contract — 740 — between the two companies under which this was done, so far as material to this question, is as follows: “This agreement made this 23d day of March, A. D., 1895, between the Louisville & Nashville Railroad company, first party, and the Elizabethtown, Lexington & Big Sandy Railroad Company and Chesapeake & Ohio Railway Company, jointly and severally, second parties, witnesseth: First. The first party, in consideration of the1 premises and of the agreements herein contained, and on the part of the second party to be performed, agrees to construct, by the first of January, 1896, a substantial railway connecting its present line, at some point between Christians-burg and Benson with its line ait Shelbyville, and by so doing reduce the length of the railway from First Street Station, Louisville, to the western terminus of the Elizabethtown, Lexington & Big Sandy Railroad in Lexington, to not more than eighty-four (84) miles; and hereby grants to the second parties, jointly and severally, the right to use, jointly with the fir sit party, its line of railway as will then exist from Louisville, through Shelbyville and Frankfort, in and through the counties of Jefferson, Shelby, Franklin, Woodford, Scott, and Fayette, to a connection with the western terminus of said Elizabethtown, Lexington & Big Sandy Railroad, in Lexington, Ky., including the use of sidings and switches, water stations, real estate, and all other property incident and necessary to the use of the same, for the purpose of running passenger and freight trains of the second parties to and from points on their line from and1 to Louisville and points beyond via Louisville. But nothing herein contained shall be construed to give the second parties any right to use the terminal buildings, shops, structures, and side tracks of the first party in the cities of Louisville or Lexington. — 741 — The parties of the first part may make and maintain all necessary connections to get off and on said line of the party of the first part at Louisville and Lexington; the connection at Louisville to be at a point adjacent to the tracks of the Louisville & Jeffersonville Bridge Co. Second. The maintenance of that portion of the railway of. the first party jointly used under this agreement, and all improvements or additions which may be added under the provisions of this agreement, shall be conducted under the charge and supervision of the first party, and the same shall be kept and maintained in a good and safe condition. Third. The engines and cars of the second parties while on the railway of the first .party, shall be managed .by the employes of the second parties subject, however, to the reasonable rules and .to the directions of the officers of the operating department of the first party. Time-tables for the movement of trains over the railways affected by this1 agreement shall be arranged by joint action of the superintendents or other officers of the parties hereto. Trains of either party shall have the right of way over all trains of either party of an inferior class. Fourth. Agents, telegraph operators, train dispatchers, section foremen, laborers, watchmen, switchmen, or any other persons employed in the maintenance or care of or operation of the property jointly used (not including station agents, except when acting as regular telegraph operators, nor employes of the traffic department) shall, in respect of the liability of the parties using said line, to each other or to third persons, growing .out of the fault or neglect of such servants or employes, be deemed and held to be the sole servants of the party to or upon or in connection with whose train or property any loss or damage may have — 742 — occurred. But it is mutually understood and agreed that any or all such persons, or any other persons employed in the care or operation of the property jointly used, shall be removed from such service upon the demand of the general manager or other general officer of the parties of the second part or either of them. Should any damage to persons or property result from any negligence of the second parties, or either of them, their or its officers or servants, they agree to hold the other party harmless against all such damages; and, should the first party be sued and judgment rendered against it for such damages, the second parties jointly and severally, bind themselves to pay the same, with all costs incident thereto, or to refund the same and costs, should the first party have already paid such damages and costs. Should any damages to persons or property result from any negligence of the first party, its officers or servants, it agrees to hold the second parties harmless against all such damages; and, should the second parties be sued and judgment rendered against them for ■such damages, the first party binds itself to pay the same, /with all the costs incident thereto, or to refund the same and costs should the. second parties or either of them have already paid such damages and costs. Should any damages result from the joint negligence of the parties hereto, or of their servants, the damages shall be equally borne as between themselves by the parties hereto. In case the parties can not agree as to whose train or employes was or were at fault, or as to the amount of damage done, the question or questions shall be referred to arbitration in •the manner hereinafter” provided, and each party shall abide by and perform the awards and comply with the decisions of such arbitrators, which decision shall terminate ■the controversy. Fifth. All business originating upon — 743 — the line between Louisville and Lexington, not including business from either of said points to the other, shall belong exclusively to the first party, but the second parties shall have the right to honor upon their trains passage tickets of first party for passengers to Frankfort and Shelby ville, and also any other points at which the trains of the second parties may be obliged to stop on account of railroad crossings, train orders, water, etc.; all of which tickets so honored shall, as soon as may be after the end of each month, be returned by the second parties to the first party, and the first party shall thereupon pay the second parties twenty-five (25) per cent, of the value of such tickets; and, in the event of conductors of second parties collecting cash fares to such points on the line used jointly (exclusive always of through fares from Louisville to Lexington and vies versa, said second parties shall, in like manner, at the end of each month, report such cash fare collections to first party, and remit to it seventy-five (75) per cent, thereof. The parties of the second part, on their regular through trains, may carry passengers to and from local points on the joint track, if such passengers be destined from or to their own lines, and on all such passengers they shall likewise pay the party <of the first part seventy-five (75) per cent, of the local fare. Sixth. The second parties hereby accept the foregoing grant of the right to jointly use the railway hereinbefore described of the first party, upon the terms above named, and agree to continue in such joint use during the period hereinafter stated. And the second parties hereby covenant and agree, for the right to the joint use of the said line of railway of the first party, to pay to said first party, its successors or assigns, a rental of five thousand dollars ($5,-000.00) per month. Seventh. In addition to the fixed — 744 — rentals or interest moneys and other payments to be paid as hereinbefore provided. The second parties agree to pay such proportion of the cost of maintenance, repairs, renewals, and improvements of that part of the road jointly used, and such proportion of the wages of telegraph operators and other employes and officers in the joint service .of the two parties under this contract, as (the number of engines and car miles of the parties of the second, part run over said railway bears to the total number of engines and car miles run over said railway, it being understood and agreed that no charge shall be made for services of general or accounting officers of the party of the first part, except for such as are actually employed in conducting the business of this particular part of the line of the ■party of the first part. 'The said second parties also agree, as part payment for their said use of said line of railway and facilities, to pay to the said first party their like proportionate share of all taxes and public rates assessed oni such portion of first party’s said line of railway, such share of said taxes and public rates to be based upon the car and engine mileage, as hereinbefore provided, in regard to maintenance,” etc. “Thirteenth. This contract shall take effect on the first day of January, 1896, and continue in effect for one hundred years from, said date.” The case of Louisville & N. R. Co. v. Chesapeake & O. Ry. Co. 107 Ky. 191 (21 R. 875) (53 S. W., 277), is relied on ■for appellee to sustain the ruling of the court below. In that case an employe of the Louisville & Nashville Railroad engaged in the maintenance, of the road was injured, the L. & N. Railroad paid the loss, and sued the Chesapeake .& Ohio to recover its share of the loss. The court determined that the Chesapeake & Ohio was liable to the — 745 — Louisville & Nashville, as the loss was part of the expense incidental to the maintenance of the road. This is all that was determined in that case. On the other hand, in the case of Railway Co. v. Osborne, 97 Ky., 112 (16 R. 815) 30 S. W., 21, 53 Am. St. Rep., 407, the company had let another have a train and train hands for the purpose of running an excursion train, from which Osborne was ejected. The company was held liable. The court said: “Public policy and the law alike forbid that a railway company shall be allowed to place its road, train hands, and cars in the hands of or under the control of a stranger for such purpose as is claimed in this action, and thus evade liability for ¡the wrongs done by such person.” It is urged for appellant that it is conceded by the pleadings that it had legislative authority to lease .its road, and so it was properly held not liable for the wrongs of its lessee. Harper v. Railroad Co., 90 Ky., 359 (12 R. 333) (14 S.W., 346); 5 Thomp. Corp., section 6293. But this case does not come within these authorities. The Louisville & Nashville Railroad Company did not relinquish to the Chesapeake & Ohio Company the possession or control of the railroad. The contract above quoted is nothing more than a traffic arrangement. The two companies jointly maintained the roadbed.' The em gines and cars of the Chesapeake & Ohio Railway Company, though managed by its employes, ■ were subject to •the directions of the officers of the operating department " of the appellant. The tickets ■ of appellant sold by its agents were good on the Chesapeake & Ohio trains; that-is, appellant, instead of carrying these passengers on its oiwn train, had them carried on the Chesapeake & Ohio trains, iand one-fourth of the collections for these fares went to ■ the Chesapeake & Ohio, and three-fourths to the Louisville '& Nashville. Besides paying its part of the cost of main — 746 — tenance of the road and taxes, the Chesapeake & Ohio paid also a rental of $5,000 a month. Under such circumstances, the Chesapeake & Ohio trains must be regarded as run "by both the companies on joint account; and both companies are liable for the negligence of those in charge of the trains to third persons, whatever their rights may be as to each other. Caruthers v. Railroad Co. (Kan.) 44 L. R. A., 737, and notes, pages 746, 750 (s. c. 54 Pac., 673). In Elliott, R. R., section 470, the rule is thus stated: “Where the lessor company, in an authorized lease, retains the control of the road, there is reason for holding it liable for the negligence of the lessee in operating the road. The. fact that exclusive control is not transferred to the lessee is an influential factor, and may well be held to constitute the basis of an exception to what we conceive to be the general rule.” In 2 Thomp. Neg., section 1956, after showing when one company might not be liable for the torts of the other, the learned author adds: “But where there is an arrangement among different railway companies whereby trains are to be run over one road in the interest of all, each contributing to the expense and having such a share in the profits as may be determined by a common agent according to a rule agreed upon among them, the occupa-1 tion and operation of the road are deemed to be joint, in such sense as to render each or all of the companies liable, for an injury inflicted upon a third person by the negligence of the persons operating any of the trains.” We are therefore of opinion that the court erred in instructing the jury that appellant was not liable for the negligence of those in charge of the train if they failed to give proper notice of its approach to the crossing. Judgment reversed, and cause remanded for further proceedings consistent with this opinion.