C. & O.R. Co. v. Preston's Admrx.

• Decision Date: 19 March 1929
• Parties: Chesapeake & Ohio Railway Company v. Preston's Administratrix.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 572

Chesapeake & Ohio Railway Company v. Preston's Administratrix.

Court of Appeals of Kentucky.

Decided March 19, 1929.

1. Railroads. — In action against railway for death of pedestrian crossing tracks on passway reserved by him in conveyance of right of way, evidence held to authorize peremptory instruction for defendant; there being entire absence of proof of any negligence on part of railroad.

2. Negligence. — Where evidence, in action for injury or death, is equally consistent with absence as with existence of negligence of defendant as proximate cause of injury, plaintiff has failed to make out case for jury.

3. Railroads. — Fact that pedestrian was killed by train as he was crossing tracks on private passway reserved by him in his conveyance of right of way did not require railroad to disprove negligence or to overcome any presumption of negligence.

4. Railroads. — Mere fact that person is found dead at or on railroad, whether it be at or near public crossing, is not in itself sufficient to authorize submission of case to jury.

Appeal from Johnson Circuit Court.

BROWNING & REED and KIRK, KIRK & WELLS for appellant.

MAY, ALLEN & MAYO for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Reversing.

In the early afternoon of January 2, 1926, the fireman of appellant's train No. 1429 discovered the body of Win Preston stooping or leaning against a high cliff on the west side of the railroad. When the train had been stopped and the witness reached the body, it had fallen into the ditch six feet or more from the rail. Members of the crew testified that the body was neither hot nor cold, and one of them expressed the opinion that Preston had been dead about half an hour. The body was much bruised and several bones broken. The deceased's false teeth were found 50 or 75 feet north of his body, but whether on or off the track does not appear. A neighbor who went to the scene shortly after the discovery of the body testified that it was warm. This witness during the cross-examination by appellant's counsel volunteered the opinion that the deceased had been struck by a train, as he "saw signs of where his body dragged the ground." There was no evidence of any blood or other indication of the exact place or of how Preston came to his death.

On account of the death, Preston's administratrix recovered judgment against the appellant railway company for $2,000, and its reversal is sought solely on the ground that the trial court erred in not giving a peremptory instruction in its favor. All other questions are expressly waived.

The petition alleged that, while the deceased was passing across the tracks of the company on a passway reserved by him in his conveyance of the right of way, and used by the public, and at a place where the presence of persons was to be expected, and while Preston was in plain view of the trainmen operating a train having engine No. 1434, he was, by reason of their negligence, run over and killed; that the trainmen knew, or by the exercise of ordinary care could have known, of his presence upon the tracks at that crossing and could have avoided striking him; and that they negligently failed to keep a lookout for the presence of deceased on the tracks, and failed to give signals of the approach of the train to the crossing, as required by statute. An amended petition alleged in the alternative that train No. 1434 or No. 1329 had killed him.

These allegations were traversed, and a plea of contributory negligence interposed.

At the place the double tracks of the Chesapeake & Ohio Railway run in a northerly and southerly direction near the bank of the Big Sandy river on the east and with a high cliff on the west. Limestone branch comes from the west, and runs under the tracks at a point estimated to be from 125 to 175 feet north of where Preston's body was found. Preston owned 100 acres of land lying on both sides of the river and railroad. His home and most of his tillable land was on the opposite side of the river from the railroad, but he owned some rough land up Limestone branch. When he conveyed the right of way to the railroad company, it agreed to construct and maintain upon and across the tracks a crossing at or near Limestone branch. It is not certain that there was any such crossing ever constructed, but there is abundant proof that some years ago there was a passway somewhere near the point the body was found which was used, not only by Preston and his family, but by a great many people. However, it appears that practically all of this travel had ceased, and the evidence does not show that the crossing was being used at the time plaintiff's intestate met his death or had been used in recent years by the public to such an extent as to be regarded as a public crossing or to place the burden upon the defendant of maintaining a lookout at that place. It does appear there was a footpath crossing the tracks diagonally near the point, and that it was occasionally used by the deceased and others. The trainmen and other employees of the railroad company testify that they had no knowledge of any crossing at that point, and consequently did not give the signals required upon approaching a public crossing.

The conditions at the place are very similar to those described in Chesapeake & O. Railway Co. v. Hunter's Adm'r, 170 Ky. 4, 185 S.W. 140, as a private crossing within a farm. At such a place, as stated in the opinion in that case, the railroad company is not obliged to give a signal or warning of the approach of trains, and owes to persons at the place only the duty to use ordinary care to avoid injuring them after discovering them to be in peril. Many authorities are...