C., N. O. & T. P. R. Co. v. Brown
| Citation | 192 Ky. 724 |
| Court | Court of Appeals of Kentucky |
| Decision Date | 07 October 1921 |
| Parties | C., N. O. & T. P. R. Co. v. Brown, By, Etc. |
Appeal from Lincoln Circuit Court.
K. S. ALCORN and JOHN GALVIN for appellant.
EMMETT PURYEAR, GEO. D. FLORENCE, W. S. BURCH and PURYEAR & CLAY for appellee.
This is an appeal from a judgment for $5,000.00 for personal injuries. At the time of the accident, which occurred between eight and nine o'clock on the evening of March 15, 1918, plaintiff was seventeen years of age and a member of a crew employed by defendant to construct fences and repair cattle pens, etc., on its right of way. The members of the crew, some seven or eight in number, lived in camp cars provided by the company, which were moved about from place to place as the work required. On the afternoon of the day of the accident these cars were moved from McKinney to Waynesburg and at about five p. m. were placed on a side track just opposite the depot at the latter place. Between the depot and the side track are the company's two main tracks, the one used by north bound trains being nearest to the side track.
Waynesburg is an unincorporated village containing a bank, five stores, a barber shop, a school house, churches, etc., and from two hundred to three hundred inhabitants. It is "scattered over a right smart little space" and with the exception of the depot and some nine or ten residences is located east of the railroad tracks which run north and south. The school house is about one-half a mile and the business center of the village about seventy-five or one hundred yards from the depot. The main street or public road through the village crosses the railroad tracks at right angles about one hundred and eighty feet south of the depot. The railroad tracks are straight for about one-half a mile on either side of the depot.
After eating supper in the camp car, plaintiff and three other members of his crew went to the barber shop, where they remained until about eight o'clock. They then started to the camp cars for the night, travelling together west along the public road until they reached the railroad crossing. Two of the party, Tom Earles and Buford Switzer, proceeded west across the railroad tracks and walked north on a cinder path and the station platform toward the depot and did not see the accident. Plaintiff and his other companion, Redford Earles, upon reaching the crossing did not cross the tracks but turned north and walked single file towards the camp cars in the space between the north main track and the side track upon which the camp cars were located. Both plaintiff and Redford Earles testify that upon reaching the railroad crossing they looked in each direction and did not see any train approaching from the south. They further testify that when Redford Earles, being in front, reached the door on the side of the camp car to which they were going, plaintiff stopped and just as Earles had taken hold of the iron hand-hold and put one foot on the stirrup at the door a north bound freight train struck plaintiff and knocked him under the camp car. At the same time a freight train was passing in the opposite direction on the south main track, the engines of the two trains passing each other at or near the crossing mentioned above. The electric headlight on the north bound engine was lighted and in order, but neither the plaintiff nor Earles saw this train or heard any signals from it or knew of its approach. They were facing the south bound train, saw it and heard its signal for the depot or crossing. Other witnesses who were near did not hear any signals from the north bound train, while the engineer and fireman testify that the customary signals were given for the crossing and station and that an additional signal was given to the passing train by blowing the whistle at or near the crossing. The engineer states that he did not see plaintiff until he stepped on the end of the ties when the train was within ten feet of him; that he was running about ten miles an hour, applied the emergency brakes at once and stopped the train as quickly as he could; that the pilot and pilot beam on the front of the engine struck plaintiff. The fireman did not see plaintiff at all.
Most of the questions raised on this appeal depend upon whether or not at the time and place the defendant owed to plaintiff the duty of maintaining a lookout and we will first dispose of this question.
It is familiar doctrine that only those to whom a duty was due may complain of a failure to perform it (C., N. O. & T. P. Ry Co. v. Harrod, 132 Ky. 445, 115 S. W. 699), and as plaintiff was not using the public crossing when he was struck it is unimportant whether or not the crossing signal required by statute was given. L. & N. R. R Co. v. Elmore's Admr., 180 Ky. 733, 203 S. W. 876; C., N. O. & T. P. R. R. Co. v. Carter, 180 Ky. 765, 203 S. W. 740. Nor is it important upon this inquiry whether signals were given for the station, since that is not required by statute; the station was not open, and besides plaintiff was not such an employe or member of the public as had a right to rely upon such signals as are ordinarily given for stations. C., N. O. & T. P. R. R. Co. v. Harrod, supra.
It is also well settled that except under peculiar circumstances a railroad company does not owe to an employe such as plaintiff a lookout duty, but that he assumes the risk and must keep out of the way of passing trains. L. & N. R. R. Co. v. Hyatt, 191 Ky. 85; Williams' Admr. v. C. & O. R. R. Co., 181 Ky. 313, 204 S. W. 292; L. & N. R. R. Co v. Mullin's Admr., 181 Ky. 148, 203 S. W. 1058.
It is insisted, however, that, considering plaintiff as an employe, the fact the company had stationed the cars in which he was required to live in such close proximity to its main tracks is sufficient to bring this case within the exception to the above general rule with reference to employes and impose upon the company the duty of maintaining a lookout, giving signals and having its trains under control so as to avoid injuring him. But this position in our judgment is not sound, since it would impose upon the company a higher duty toward plaintiff at such times as he was not actively engaged and necessarily upon or about the tracks in the discharge of his duties as an employe, than when he was so engaged. The company ought not, it seems, to be under a higher duty for the protection of an employe when he is off duty than when actually employed in a hazardous undertaking and his attention is more or less diverted from the danger of passing trains by the duties he is required to perform. His right to be upon or about the tracks at the one time cannot give him a better right to protection or the right to greater protection than when his duties require him to be there. Besides, if the company owes this duty to members of construction crews that live in camp cars and are constantly being moved about from place to place on its tracks, how much more reasonably would it owe such a duty to section men who reside in the company's section houses permanently situated along its right of way and not otherwise accessible except...
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