[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 314 Reversing.
About 8 a. m. on June 24, 1929, S.T. Cox and his wife, Zelpha Cox, while traveling in a Chevrolet coupe on the highway which crosses the tracks of the appellee Lit a station called Revilo, in McCreary county, were struck and killed by a train of the Cincinnati, New Orleans Texas Pacific Railway Company, which train consisted of an engine, coal tender, and one car.
The administrator of Zelpha Cox was duly appointed, qualified, and filed an action to recover damages for her estate, resulting from her death, against the appellees, Cincinnati, New Orleans Texas Pacific Railway Company, Fayette Thompson, and _____ Smith, who were the engineer and fireman, respectively, on the train which struck the automobile in which she was traveling.
The administrator of S.T. Cox was duly appointed and qualified and filed an action to recover damages resulting from S.T. Cox's death, against the appellees. By agreement the two actions were consolidated and heard together. At the conclusion of appellants' evidence, on motion of the appellees, the court gave to the jury a peremptory instruction to find for them. Judgment was entered on this verdict, dismissing the petitions with cost. From it, this appeal is prosecuted. *Page 315
Revilo is a station on the Cincinnati, New Orleans Texas Pacific Railway, situated on the outskirts of Stearns, an unincorporated town in McCreary county. S.T. Cox and Zelpha Cox resided in the vicinity of this crossing, on the Pine Knot road. They were familiar with this crossing. The highway crosses the railway tracks on a grade. The Highway is known as "The Airline to Lookout Mountain Route from Cincinnati to Chattanooga."
The highway runs practically parallel with the railroad through the county in a northern and southern direction. It is in sight of the railway tracks from three-quarters to one mile south of Revilo. There are three tracks at this crossing. The north-bound is on the east, the storage in the middle, and the south-bound is on the west. As the highway comes from the south at about 150 feet of the crossing, it makes a right angle turn to the left. On the left of it is a garage building. The storehouse, dwelling, and a few trees are located right along the highway. The garage is 150 to 200 feet south of the store, and on the east side of the railroad. The highway, after you turn to the right, goes down a grade. On the righthand side of it, there are two section houses and an embankment. The embankment is higher at section house No. 2 than at section house No. 1. A fence runs down from the right of the ground on which these section houses are built to within a few feet of the north-bound track. As a car approaches from the south on this highway, its occupants are unable for a short distance to see a train that comes from the north until they are within a few feet of the north-bound track or within about 12 feet of it. The track some 200 or 250 feet to the south of the crossing curves to the right. The track north or the crossing comes out of what is known as "Sand Cut," estimated to be 30 to 35 feet deep and situated on a curve. "Sand Cut" was cut out of the surface of the ground for the purpose of grading the track.
At the time of the accident, the train which struck and tilled decedents was backing toward the crossing from Sand Cut, which is about 800 or 900 feet north of the crossing. The rate of speed at which it is estimated to have been traveling varies from 15 to 35 miles per hour. The automobile came along the highway on the east side of the north-bound track, turned to the left *Page 316 passing through a cut in the road, crossed the north-bound track, and as they approached the south-bound track, the car in which they were traveling was struck. Mrs. Cox was instantly killed and Mr. Cox died within about two hours. As they turned to the left to approach the crossing, the section houses were on their right and on the property of the railway company, and were at that time occupied by employees of the railway company. These section houses cut off their view, looking north toward Sand Cut, of the train as it was backing from Sand Cut toward the crossing. No employee of the railway company was on the back end of the train. The whistle was blown twice for the crossing about the time it came out of Sand Cut. The whistling post is 825 feet from the crossing. No other whistle was blown, and no bell was rung or other signal given to indicate the presence of the movement of the train or to indicate the intention of those in charge of the train to use the crossing.
The testimony as to whether deceased S.T. Cox, who was driving the automobile, at the time he drove onto the north track, was looking to the south, or down the track opposite the direction in which the train was backing, or directly across the track, varies. The engine of the train of cars was between the tender and caboose, on the opposite end from the crossing. The testimony as to whether S.T. Cox increased his speed before or at the time the car was struck, or continued at the same rate at which they approached the north-bound track, is conflicting. The deceased S.T. Cox was somewhat deaf.
The question presented on this appeal is: Did the court err in giving a peremptory instruction?
The appellee insists that both S.T. Cox and Zelpha Cox were guilty of contributory negligence, and therefore their estates are precluded from a recovery, and the giving of the peremptory instruction was proper. To sustain this contention they cite the cases of Long Fork Ry. Co. v. Martin,
In the Martin case, the deceased went deliberately in front of the train and was killed. In Taylor's Adm'r v. K. T. Ry. Co., supra, he walked in front of an approaching train. He disregarded or ignored warnings given to him by others of the approach of the train. There was not a scintilla of evidence tending to prove negligence on the part of defendant in Piersall's Adm'r v. C. O. R. R. Co.,
It was the duty of appellees to maintain a lookout and to exercise ordinary care to avoid injuring persons using the crossing, and to begin to ring the engine bell *Page 318 or sound the whistle at least 50 rods from the crossing and continuously or alternately ring it or sound the whistle until the engine reached the highway crossing. The train was being backed onto and over the crassing without blowing the whistle or ringing the bell, and without the presence of any one on or off the train to warn the traveling public of the train's approach. It was running at a rate of from 15 to 35 miles per hour, and its speed was not slackened on approaching the crossing. There is no evidence that the engineer, fireman, flagman, or brakeman was keeping a lookout. The whistling post is such a distance froth the crossing that one approaching the crossing with their view obstructed by the section houses would have been in all probability unable to hear the whistle or the ringing of the bell in time to locate the train. The whistle was only blown twice and no bell was ringing, and such failure to sound the whistle or ring the bell alternately and continuously was calculated to induce the decedents, supposing them to be acquainted with the requirement or custom of ringing the bell or blowing the whistle when approaching the crossing, to believe that the train was not intending to approach or use the highway crossing. The section houses cut off the view of the backing train from the decedents until they got within, according to the evidence, twelve feet of the north-bound main track and no signal or warning was being given of the intention to use the crossing.
The situation and circumstances in the present case tire very similar to those described by the evidence in Louisville N. R. R. Co. v. Lucas' Adm'r, 98 S.W. 308, 310, 30 Ky. Law Rep. 359. In the Lucas case we said: "That, in view of unusually dangerous character of the crossing, the usual signal from whistle or bell, if given, would without a slackening of its speed, have been to warn the decedent of the coming of the train." The fact that the decedent before going on the crossing did not stop, look, or listen, did not constitute contributory negligence, nor authorize the giving of a peremptory instruction. Barksdale's Adm'r v. Southern Ry. Co.,
In cases where evidence was that the crossing was obstructed by permission of the company or had been permitted by it for a reasonable length of time to be obstructed upon its right of way or by its own buildings, we have held that it was proper to submit to the jury the question as to whether or not the crossing was all unusually dangerous one, although it was all ordinary country crossing. The proven conditions at the crossing in the present case bring it within file rule laid down in the above cases.
Evidence of the frequent and constant use by the traveling public of this crossing was competent, the witnesses giving the facts upon which they based their statements, and of the rate of speed of the train was competent as bearing on the care used by the appellees commensurate *Page 320
with the danger which must be observed by them. Big Sandy Ky. River Railway Co. v. Blair,
On the other hand, if the decedents were themselves negligent, and by reason of their own negligence were placed in peril, and those in charge of the train, with the means at hand, by the exercise of ordinary care, within the time and under the circumstances, could not have avoided the collision, in this event the appellees are not liable to their estates. Knapp v. Gibbs,
The law as to the right of the estate of Zelpha Cox to recover of appellees is in one respect different from that of the estate of S.T. Cox. It is shown by the evidence that S.T. Cox was operating the car at the time of the collision, and there is no evidence tending to show a relationship of master and servant or principal and agent between her and her husband in the operation of the automobile. The rule is that one riding in a vehicle as the guest of another is not responsible for the latter's negligence unless there exists such relationship as to make the guest responsible for the negligent acts of the others. Louisville Ry. Co. v. McCarthy,
If S.T. Cox was guilty of negligence and Zelpha Cox had knowledge of the facts constituting his negligence, if any on his part, for sufficient time prior to the accident to have enabled her to take requisite precautionary steps within time to have avoided the collision, and she failed to do so, in that event his negligence may be imputed to her. But if such contributory negligence on his part, if any, arose suddenly without an opportunity on her part to exercise ordinary care to avoid its consequences and to provide against it for her own safety, in this event his contributory negligence cannot be imputed to her. If her death resulted solely from the negligence of her husband, in that event no recovery may be had against the appellees on account thereof. Winston's Adm'r v. City of Henderson,
Wherefore the judgment is reversed, and cause remanded for proceedings consistent with this opinion.