Hummer's Extx. v. Louisville & Nashville R. R.

Opinion op the Court by Judge Hobson Affirming. On September 18,1905, J. W. Hummer, while-walking across tbe track of tbe Louisville & Nashville Railroad at the Covington crossing in the outskirts of Franklin, Ky., about 9 o’clock in the morning, was struck and killed by the fast train from the south, and this suit was brought by his administrator to- recover damages for his death. The town boundary runs through the crossing; that is, a part of the crossing is in the town and a part outside of it. The town- is a place of between 2,000 and-3,000 people, and the crossing was much frequented. There were a number of — 490 — houses in the neighborhood of the crossing and beyond the town boundary. The testator was 74 years of age and entirely deaf. He could hear nothing. One witness who saw the occurrence stated that the intestate came up on the west side of the track and the train struck him when he was nearly across. Another witness, who heard the train and went out to look at it, saw him fly out after he was truck by the engine. The evidence on behalf of the plaintiff was- to the effect that the train was running very rapidly. The evidence for the defendant was that the engineer did not see the deceased at all, and could not see him from the fact that the boiler obstructed his view, as the deceased approached the track on the opposite side from him. The fireman, who was looking out on the opposite side of the engine, saw the deceased, and, as soon as he perceived from his movements that he was coming on the track, hallooed to the engineer. The engineer sounded the alarm whistle, reversed his engine, and applied the brakes; but before the train could be stopped it struck him and killed him. The proof for the railroad was that the usual time of the train was about 40 miles an hour; that some distance back the steam had been cut off, and the train was rolling along to the station by its momentum about 20 miles an hour; that the bell of the train was ringing and that whistles had been blown as they approached the town crossing. On this evidence the court instructed the jury-substantially as follows: (1) If the crossing was such that the persons on the track might reasonably be expected, and those in'charge of the engine negligently failed to keep a lookout or to run the train at such speed as might be usually expected of ordinarily prudent persons operating a railroad under similar circumstances, — 491 — and by reason of either of:-these- things the deceased met his death, they should find for the plaintiff. '(2) But" if he was himself- negligent, and' but for this would not have been killed, they should find for the defendant, unless those in charge of the .engine, after they discovered, or by ordinary care could have discovered, the peril in which his negligence had placed him, thereafter failed to use ordinary care to avoid injuring him, in which event they should! find for the plaintiff. (3) Those in charge of the train were under no duty to stop it or check it unless the conduct of the deceased was such as to lead an ordinarily prudent person to believe that the deceased did not know of the approach of the train and intended to go upon the track, but that it was their duty to make an effbrt to stop the train when they saw, or by the use of ordinary care could have seen, this. (4) The deceased being deaf and unable to hear, it was his duty to exercise great care and caution in the use of his remaining senses to avoid danger from the. train. (5) The deceased being totally deaf, -the plaintiff could not recover anything on account of the negligence, if any, of the defendant’s servants in failing to sound the whistle or ring the bell on the approach of the train. The jury found for the defendant, and the plaintiff appeals. The plaintiff insists that the first part of the first instruction is erroneous^ in that the duties therein required are predicated on the crossing being a place where the presence of persons .on the track was to be expected; and it is said that, it being a public crossing, this qualification was unnecessary. This part of the first instruction was taken from-instruction A, asked by the plaintiff; and the. rule is- that the plaintiff -can not complain of an instruction which he himself asked. — 492 — Besides, there was no contrariety as to the crossing being a much-frequented place, within the city, and at a point on the track where the presence of persons was to be anticipated. It is not the duty of those in charge of a railroad to slacken the speed of the train at ordinary public crossings. This is ordinarily only required at places where the population is crowded and the presence of persons on the track is to be anticipated. ' There was- no error of the court in using the word “negligently” in that part of the instruction which referred to the lookout. The evidence showed that the engineer could not see on account of the obstruction of the boiler. This part of the instruction is to be read with No. 3, and meant that those in charge of the engine must use Ordinary care in discovering whether the deceased was ignorant of the approach of the train and was about to go on the track. The second instruction has often beén approved by this court. The rule in this State is- that contributory negligence bars, a recovery unless, notwithstanding the negligence of the person injured; and after his peril is perceived, or might by ordinary care be perceived, in cases like this, the defendant’s servants could by ordinary care avoid injury to him. The traveler who by his own negligence puts himself in peril on a railroad track can not recover, unless the danger to him may be avoided by proper care on the part of the railroad after it has notice, actual or constructive, of the danger in which his negligence has placed him. If the train was by negligence running too fast, and the deceased was by negligence on the track, -the injury would be due to the concurrent negligence of both the parties, and in such a case he can not recover for the negligence of the railroad company because, but for his own negligence, he would not have — 493 — been hurt; and where both parties have been negligent the law will not measure comparisons between them, and make the defendant responsible on the ground that its negligence was greater than his. . It is said that the instruction should have been that the plaintiff could recover, although the intestate was negligent and but for his negligence would not have been injured, if those in charge of the train, after they saw his danger could have averted the injury to him by ordinary care if the train had been running at a proper •rate of speed. This would be to láy down the rule of comparative negligence, and to hold that, although the intestate was negligent, there could be a recovery if the negligence of the defendant, and not his negligence, was the proximate cause of the injury. The rule has been so declared in some jurisdictions; but it has never been followed in this State. The proper speed of the train may be taken into consideration by the jury with the other facts shown by the evidence in determining whether the traveler used ordinary care in going upon the track as he did; and it is a question for them on all the evidence whether there was negligence on the part of the defendant, or negligence on his part but for which the injury would not have occurred. The rule insisted on by counsel has been followed in the case of infants too young to be charged with contributory negligence; but it is not applicable to other persons. See Lexington R. R. Co. v. Van Laden (Ky.), 107 S. W. 740, 32 Ky. Law Rep. 1047, and L. & N. R. R. v. McNary’s Admr. (decided at this term), 108 S. W. 898, 32 Ky. Law Rep. 1266. The term contributory negligence implies the existence of negligence on the part of the defendant. But there would be no negligence of the defendant as to the speed of the train if the train was running at proper — 494 — speed; and. so it would follow,'if. the rule urged for appellant is adopted, that -the contributory negligence of the traveler ■ in such cases can only be relied on where there is no negligence of the defendant. Instruction 4. is taken from the opinion of this court in the case of L. & N. R. R. Co. v. McCombs, 54 S. W. 179, 21 Ky. Law Rep. 1235. It is insisted that it is contrary to the rule in this State that instructions must not single out facts or give undue, prominence to them. "We do not think the instruction is liable to this objection. It has.often.been held by this court that, where the crossing is especially dangerous, it is incumbent on both the railroad company and the traveler to use increased care commensurate with the danger, and that the jury should be so instructed. It has also been held that a person who is intoxicated must use such care as a sober person of ordinary prudence would usually, exercise under like circumstances, and that the jury should be so instructed. L. & N. R. R. Co. v. Cummins, 111 Ky. 222, 63 S. W. 594, 23 Ky. Law Rep. 681; Covington v. Lee 89 S. W. 493, 2 L. R. A. (N. S.) 481, 28 Ky. L. R. 492; I. C. R. R. Co. v. Proctor, 122 Ky. 92, 89 S. W. 714, 28 Ky. L. R. 602. We do not see any substantial difference between the propriety of defining to the jury the care necessary where the crossing is especially dangerous, and where the danger arises; not from the character of the crossing, but from the infirmity of the person. Jurors would often be misled by the general form of the instruction, if the meaning which the law attached to the terms used under such circumstances was not pointed out to them. ■ The fifth instruction should not have been given; for it is incumbent on railroad trains to give proper-warning of their approach, and, although deaf persons — 495 — may not hear them, other persons may, and! thus save them from danger. But under the facts in this case the instruction was not prejudicial. In order for the plaintiff to recover he must-not only show that there was negligence on the part of the defendant, hut also that the injury occurred as the proximate result of such negligence; for he can not complain of negligence on the part of the defendant which in no way affected the injury complained of. On the whole record we are satisfied that the jury came to the conclusion from the evidence that the death of the intestate was an unfortunate accident, due primarily to the fact that he was deaf and could not hear the train’s approach or the signals given, and that, hut for this, it would not have occurred. Judgment affirmed.