Chesapeake & O. Ry. Co. v. Dawson's Adm'r

• Decision Date: 28 May 1914
• Parties: CHESAPEAKE & O. RY. CO. v. DAWSON'S ADM'R. [d1]
• Court: Kentucky Court of Appeals

167 S.W. 125

159 Ky. 296

CHESAPEAKE & O. RY. CO. v. DAWSON'S ADM'R. ^[d1]

Court of Appeals of Kentucky.

May 28, 1914

Appeal from Circuit Court, Lewis County.

Action by Ivan W. Sanders, as administrator of Nancy E. Dawson against the Chesapeake & Ohio Railway Company and others. From a judgment for plaintiff, defendant named appeals. Affirmed.

Worthington Cochran & Browning, of Maysville, for appellant.

A. D Cole, of Maysville, and S. J. Pugh, of Vanceburg, for appellee.

CLAY C.

Ivan W. Sanders, as administrator of Nancy E. Dawson, brought this action against the Chesapeake & Ohio Railway Company, the Chesapeake & Ohio Railway Company of Kentucky, and David Evans, its engineer, to recover damages for the death of his decedent. From a verdict and judgment against it, the Chesapeake & Ohio Railway Company appeals.

The accident happened under the following circumstances: Garrrison is an unincorporated village of from 200 to 350 inhabitants. The greater portion of the village is situated east of the railroad depot. About 750 feet west of the depot a public highway crosses the railroad at right angles and runs to the Ohio river. This road, which is known as Garrison lane, runs from the Ohio River Ferry Landing to a public road lying a few feet east of the railroad tracks and running parallel with the Ohio river. The decedent, Mrs. Dawson, lived near the terminus of Garrison lane at the ferry landing. At the time of the accident there was but one main track through the village. A short distance below and above the depot were switch tracks which connected with the main line and extended some distance east and west. These switch tracks were occupied by two trains. The engine west of the depot was about 150 feet from the western end of the platform. The engine east of the depot was about 350 feet east of the eastern end of the depot. The platform itself was about 150 feet long. On the morning of the accident, which occurred February 28, 1911, Mrs. Dawson left her home near the ferry landing for the purpose of taking passage on the morning accommodation train. She walked from her home down Garrison lane until she came to defendant's tracks. The crossing was blocked by a freight train. She could not turn to the right and go around the freight train because of the presence of a large pond and a wire fence along the right of way. For this reason she turned in an easterly direction and walked along the northern side of the freight train until she reached the engine. She then crossed over in front of the engine to the main track, and walked along the main track towards the depot. She had proceeded but a short distance when she was struck and killed by a fast west-bound passenger train. When struck she was within 15 or 25 feet of the platform, and about 75 or 100 feet from the depot itself.

It was in proof that persons going to and from the depot to the ferry landing made use of defendant's track between the lane leading from the landing and the depot. Including these and other persons, the track was used daily by about 100 persons. There was also proof to the effect that it was snowing as decedent proceeded towards the depot, and that the two engines, one east and one west of the station, were emitting steam, which obscured the view of the approaching train. The train at the time of the accident was going between 50 and 60 miles an hour, and according to some of the witnesses, the bell was not being rung and no signal of the approach of the train to the depot was given.

For the defendants the engineer, Evans, testified that he was in charge of the engine which struck decedent. He blew the regular station whistle at the whistling post, which at that time stood just east of the water tank. At the passing of the water tank he blew a road crossing whistle. It was a very stormy morning, and was snowing at the time. The snow was banked on his front window. In order to see down the track he had to put his head out the side cab window. He did this just east of the road crossing between the freight depot and the passenger depot at the automatic train block signal. When he looked out he could see west of the depot for a little distance. He did not see Mrs. Dawson, and did not know that he had struck her until the arrival of the train at Covington. On cross-examination he stated that the fireman occupied the other side of the engine. Did not remember what his position was at the time. He sounded the station whistle about 100 feet east of the water tank. The fireman did not recollect exactly what he was doing when the engine passed through Garrison, but he generally put coal in the fire after the engine got off the curve. Never knew of Mrs. Dawson's being struck until he reached Covington. Other witnesses testified that the whistle for the station was blown.

(1) It is first insisted that the facts of this case are not sufficient to bring it within the rule that, where the public generally, with the knowledge and acquiescence of the railroad company, having continually used its tracks for a long period of time, the presence of persons on the track at the point where it is so used must be anticipated by the company in running its trains, and it owes to such persons the duty of giving a warning and keeping a lookout. In this connection we are cited to a number of cases holding that the rule has been confined to cities and thickly populated communities, but does not extend to rural communities or sparsely settled regions, although the track at those places may be used by a large number of persons. C. & O. Ry. Co v. Nipp's Adm'x, 125 Ky. 49, 100 S.W. 246, 30 Ky. Law Rep. 1131; L. & N. R. R. Co. v. Redmon's Adm'x, 122 Ky. 385, 91 S.W. 722, 28 Ky. Law Rep. 1293; Miller's Adm'r v. I. C. R. R. Co., 118 S.W. 348. In the more recent cases, however, the question whether the party injured is a mere trespasser or licensee is made to depend, not on the...