Louisville N. R. Co. v. Curtis' Administrator ( 1929 )

In a case like this, where it is sought to recover for personal injuries, or death, it is necessary to establish by the evidence that the defendant failed to perform some duty that it owed to the plaintiff, and was therefore negligent. I cannot agree with the majority opinion that negligence was established by more than a scintilla of evidence, if there was any evidence at all tending to show that appellant failed in any duty that it owed appellees. An examination of the cases cited in the opinion will show that no judgment was upheld in any case where the evidence was so slight tending to show negligence.

Here four people approached the crossing riding in a one seated automobile. They were strangers in this community. Their whole case depends upon the testimony of four or five witnesses that they did not hear any signals given, as is required when a railroad train approaches a public crossing. As against this evidence, purely negative in its nature, there were about fifteen witnesses who testified that signals were given. Four or five of this number may have been connected with the appellant as employees, but that left about ten wholly disinterested witnesses who testified that the whistle was blown and that the bell was rung and that the automatic signal at the crossing was in operation.

Negligence will never be presumed, but it must be proven either by showing direct acts of negligence or by showing facts from which negligence may be inferred. It is a relative term dependent on the facts and circumstances, and it may be defined as failure or omission to do that which an ordinarily prudent man would do under the same conditions and circumstances, or a failure to abstain from doing that which he would not do. Before a plaintiff can recover for negligence, the evidence must show the existence of a duty owed by defendant to plaintiff, a violation of that duty by the defendant, and damage to plaintiff by reason of such violation. Where evidence on the issue of negligence is equally consistent with the existence or nonexistence of negligence, or is so unsatisfactory as to require speculation or surmise on the part of the jury as to how an injury occurred, the case is not for the jury, but for the court, which should hold, as a matter of law, that the defendant is not liable. These general principles were stated in the recent case of Illinois Central Railroad Co. v. Cash's Adm'x, 221 Ky. 655, 299 S.W. 590. The authorities are there collected.

The mere fact that there has been an accident as the result of a collision between an automobile and a train at a crossing does not establish negligence. Before the railroad company may be held responsible for the resulting injury growing out of such an accident, the plaintiff must establish, by satisfactory evidence sufficient to convince a jury and uphold its verdict, that the railroad company was guilty of negligence which resulted in the injury.

In the recent case of Nashville, C. St. L. Railway Co. v. Byars, 25 S.W.2d ___, opinion handed down March 4, 1930, this court held that the testimony of witnesses that they heard no train signals, supported by the testimony of the plaintiff that she listened before driving onto the crossing, and did not hear signals or the approach of a train, was sufficient evidence to justify the submission of the case to the jury, but that the large preponderance of the evidence tended to show that proper signals were given, and that the plaintiff exercised no care for her own safety, and for that reason the verdict of the jury was flagrantly against the weight of the evidence both on the issue of negligence and contributory negligence. That case was supported by more evidence than the case before us, because the negative testimony of witnesses that they heard no signals was corroborated by the testimony of the plaintiff that she listened for signals and heard none. In the case now before us, the only survivor who was in the automobile at the time of the accident made no claim that he, or those with him, made any effort to discover the approach of the train.

The whole case, therefore, for appellees depended upon the negative testimony of four or five witnesses to the effect that they heard no signals, and some of them stated that they were not listening for signals, or that the passing of trains was so common as not ordinarily to attract their attention. Over against this are more than twice the number of disinterested witnesses who affirmatively stated that they heard and saw the signals. There was not sufficient evidence, in my judgment, to uphold the verdict, even if it should be conceded that under the scintilla rule the case should have been submitted to the jury, which I very much doubt.

On the question of contributory negligence, the majority opinion is equally unsatisfactory. Those occupying the automobile drove upon a public crossing in front of the train, and there is no evidence from any witness that they took any precaution for their own safety, or that they exercised ordinary care, or any degree of care, to ascertain whether they would be endangered by attempting to pass over the crossing at the time. Witnesses saw them approach the crossing, and, without slowing up the speed of the car, or without hesitating in any way, the automobile was driven onto the crossing and struck by the train. Under such circumstances, it is the merest speculation or surmise to hold that they took any precaution for their own safety. The case could be submitted to the jury on that branch of the case only by indulging the presumption that they listened for the train, or that they looked for it, and such a presumption is not authorized without any proof to support it.

For these reasons I feel it my duty to dissent from the majority opinion, and Chief Justice THOMAS and Judge REES authorize me to say that they join in the dissent.