Rogers, Harold D.

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University of Kentucky

Kentucky Law JournalVolume 51 | Issue 2 Article 131962Torts--Standard of Care for Motorists at RailroadCrossings--A Case for Comparative NegligenceHarold D. RogersUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationRogers, Harold D. (1962) "Torts--Standard of Care for Motorists at Railroad Crossings--A Case for Comparative Negligence,"Kentucky Law Journal: Vol. 51 : Iss. 2 , Article 13.Available at: https://uknowledge.uky.edu/klj/vol51/iss2/13RECENT CASESthe illness from which the addict suffers. The addict will not bemotivated to seek a cure as long as he is receiving narcotcs.15Some states have adopted the compulsory civil commitment planfor treating addicts.16 Under this plan the addict is actually confinedto a hospital. During this period he is gradually taken off narcoticsand attempts are made to rehabilitate him. This seems to be a soundsolution to the problem but it is presently impracticable because ofthe lack of adequate facilities. The only institutions built especiallyto treat addicts are in Lexington, Kentucky, and Forth Worth, Texas;in addition, a small hospital is maintained in New York City for juve-niles.17 One reason for this present lack of facilities is that the publicis unaware of the nature and magnitude of the addiction problem. Aslong as this unawareness exists, compulsory civil commitment willremain impracticable.The status of addiction is a sickness and not a crime. Providingfacilities to cure this sickness is a responsibility of the public. Thestate and federal governments should take immediate steps to educatethe public about this problem so that a progressive plan of treatmentand rehabilitaton can be undertaken.William L. MontagueTOiRTS-STANDAiRD OF CARE FOR MoToRIsTs AT RAILROAD CRossINGs-ACASE FOR ComPARAIvE NEGLIGENCE-The decedent approached de-fendant's railroad crossing on a two-lane, paved, county road on aclear afternoon. Two railroad signs and an official county "stop"sign were posted to warn motorists of the crossing. From the "stop"sign, which was ten feet from the nearer of the two tracks, a motoristcould see only 140 feet down the track to the right. Because of weedsgrowing on the defendant's right-of-way vision beyond 140 feet wasimpossible until the front wheels of the decedents automobile werealmost on the first track. As he was crossing the tracks, his automobilewas struck from the right by the defendant's train which was going45 miles per hour. There were no eye-witnesses to the actual impact.The lower court entered judgment for the decedent on the jury s verdictof $162,121.50. Held: Reversed with directions to enter a judgmentfor defendant. Although the defendant was negligent in permittingthe weeds to obscure vision, the court found that the decedent could15 Ibid.16 See, e.g., Cal. Welfare & Institutions Code §§5350-61.17 Eldndge, op. cit. supra note 13, at 113.1962]KENTUCKy LAW JoURNAL [Vol. 51,have seen the approaching tram at some indeterminate point betweenthe "stop" sign and the track, and therefore was contributorilynegligent as a matter of law Louss'lle & Nashville R.R. -v. Fisher,357 S.W.2d 683 (Ky 1962).The principal case presents a perfect illustration of the classicinequity of the doctrine of contributory negligence. Under the holdingof this case, a motorist is barred from recovering any damages if henegligently fails to discover a tram, although the negligence of therailroad makes such discovery almost impossible. The KentuckyCourt of Appeals has held that where both parties are guilty ofnegligence which concurs m producing the injury complained of,courts will not stop to inquire which was the most negligent but willdeny recovery if the mury would not have happened but for thenegligence of the plaintiff . The bar is absolute despite the fact thatplaintiff's negligence amounts to only a minute fraction of the totalwhich contributes to his injury It is an understatement to say thatthis result is not the most just, and particularly so when reached in asystem of law which traditionally purports to base liability on fault.Quoting from Hunt's Adm r v. Chesapeake & 0 Ry.,2 the Court ofAppeals set forth in the principal case what it termed the modemview of the standard of care of a motorist at a railroad crossing.In Hunt the court said:Where the injured party fails to look and listen under circumstanceswhere an ordinarily prudent man would look and listen, such personwill be guilty of contributory negligence as a matter of law.3In finding that the decedent failed to look and listen as a reasonableman would do, the court in the principal case reasoned as follows:It seems clear the decedent pursued one of two courses. He eitherignored the STOP sign and proceeded over the crossing withoutheeding its warning or he stopped (or slowed his vehicle suf-ficiently), before reacung the track, to appraise the hazard ofproceeding further. If he pursued the first course and completelyignored the STOP sign and the other warnings of the crossing, hemiust be held negligent as a matter of law. On the other hand, if hedid stop or even slowed his velucle sufficiently to prepare for theobvious crossing hazard then reasonable minds must concludethat he did not exercise due care thereafter when he failed to seeor hear the approaching tran. 4Because of the doctrine of contributory negligence, the court wascompelled to choose one of only two alternatives: full recovery forI Peerless Mfg. Co. v. Davenport, 281 Kv. a54, 136 S.W.2d 779 (1940).2254 S.W.2d 705 (Ky 1932).a1 Id. at 709.4 Louisville & Nashville R.R. v. Fisher, 357 S.W.2d 683, 689 (Ky. 1962).RECENT CASESthe plaintiff or no recovery at all. A more equitable solution can bereached by applying the doctrine of comparative negligence, whichpermits a choice from many alternatives. Under this doctrine, if thenegligence of both the plaintiff and the defendant contribute to theplaintiff's injury, the negligence of both parties is compared and theloss apportioned on the basis of fault. Thus, the plaintiff is notcompletely barred because of his negligence, but his recovery isdiminished commensurate with his fault. In the principal case, theKentucky court appears to have realized that an application of thisdoctrine "in a case of this kind might well accomplish the most justresult."5 However, since Kentucky has not recognized this doctrine,the court apparently felt bound to use contributory negligence.The comparative negligence doctrine has been widely acceptedin countries other than the United States. As stated by Prosser:The United States is virtually the last stronghold of contributorynegligence. The last vestige of the complete defense has disappearedlong since from all of continental Europe which divides the damages.Great Britain, all of the Canadian provinces, New Zealand andWestern Australia now have come to the same result, so that verylittle of the British Empire is left with the common law rule.6Recently, however, there seems to be a trend toward recognition ofthis doctrine in the United States. Mississippi, Nebraska, SouthDakota, Wisconsin, Arkansas, and the Commonwealth of Puerto Riconow have comparative negligence statutes applicable.to all types ofnegligence cases, and since 1951, across-the-board comparative negli-gence legislation has been introduced in at least 18 states and seriouslyconsidered in at least three more,7 including Kentucky s Even if theKentuckv legislature is not willing to adopt across-the-board com-parative negligence measures, it should take immediate steps towardpreventing the possible recurrence of the result of the principal case.A state whose example Kentucky could well follow is Florida,where, by statute, comparative negligence is applied to all cases wherea railroad contributes to a personal injury 9 In one case,' 0 decidedunder that statute, with facts very similar to the instant case, theFlorida court held that the plaintiff would be barred unless someId.I at 691.6 Prosser, Comparative Negligence, 41 Calif. L. Rev. 1, 2 (1951).Malonev, From Contributory to Comparative Negligence: A Needed LawReform, 11 Fla. L. Rev. 159 (1958).8 S.B. 179, Ky. 1954, provided that contributory negligence shall not be abar to recovery in torts but shall cause the damages to be dirmshed, but thebill was rejected by a vote of 28-5 on March 15, 1954. See 1 Legislative Record,No. 47. Reg. Sess., March 22, 1954.0 Fla. Cen. Laws §§7051(4964), 7052(4965) (1927).10 Flonda East Coast Ry. v. Townsend, W~14 Fla. 362, 140 So. 196 (1932).1962]380 KFmvcxy LAW JouRNALappreciable negligence of the railroad proximately contributed to hisinjury or death in which case the damages awarded should be sucha proportion of the entire damage sustained as defendant's negligencebears to the combined negligence of both parties. This case aptlydemonstrates the apportionment of loss allowed by comparativenegligence which the Kentucky court said "in a case like this mightwell accomplish the most just result."Harold D Rogers

Torts--Standard of Care for Motorists at Railroad Crossings--A Case for Comparative Negligence

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Torts--Standard of Care for Motorists at Railroad Crossings--A Case for Comparative Negligence

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