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

• Decision Date: 18 October 1912
• Citation: 150 S.W. 29,150 Ky. 74
• Parties: CHESAPEAKE & O. RY. CO. v. WARNOCK'S ADM'R. d
• Court: Kentucky Court of Appeals

150 S.W. 29

150 Ky. 74

CHESAPEAKE & O. RY. CO. v. WARNOCK'S ADM'R. d

Court of Appeals of Kentucky.

October 18, 1912

Appeal from Circuit Court, Greenup County.

Action by Fred. Warnock's administrator against the Chesapeake &amp Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Worthington Cochran & Browning, of Maysville, for appellant.

S. S Willis, of Ashland, for appellee.

MILLER J.

Fred. Warnock, a young man 32 years old, was employed in Warnock Bros.' general merchandise store in Fullerton, a town of some 500 inhabitants or more, in Greenup county. The store faced Ferry street on the east side of the railroad track while the railroad platform faced Ferry street on the western or opposite side of the railroad track. On June 4, 1910, Warnock Bros. received a shipment of cowpeas by rail, which had been unloaded on the depot platform on the opposite side of the track from Warnock's store. Fred. Warnock was standing in front of the store late in the afternoon, when a sudden shower of rain came up; and, the cowpeas being uncovered, he started to cross the track to the platform for the purpose of covering the exposed cowpeas, so as to protect them from the rain. As he was about to cross the track, an east-bound freight train, composed of 25 cars, crossed Ferry street at a distance of about 60 feet from Warnock. When the engineer saw that Warnock was about to cross in front of the train, he blew repeated danger blasts, and applied the emergency brakes, but failed to stop the train before it struck Warnock. Warnock was knocked onto the platform, and received injuries from which he died on November 23, 1910, some five months later. Warnock's administrator having recovered a judgment for $6,777.77 damages, the defendant prosecutes this appeal.

We have the contradictory evidence, usual in such cases, tending to show the negligence of the trainmen and the contributory negligence of the deceased. The weight of the evidence tends to show that the engineer failed to ring the bell, or sound the whistle, until about the time the train was crossing Ferry street, at a distance of about 60 feet from the point where Warnock was struck by the engine. There is evidence, however, by the train crew that the engineer had sounded the whistle and rung the bell at some distance below the Ferry street crossing. The engineer admits that he was running at a rate of from 15 to 18 miles per hour.

1. Appellant's first ground for reversal is that, Warnock having been injured upon appellant's private right of way in an unincorporated community, he was a trespasser; and the appellant owed him no duty except to use ordinary care to avoid injuring him after the discovery of his peril, and that it did exercise such care in this instance. This defense is based upon the idea that the duty which appellant owed Warnock was fixed by the fact that Fullerton was an unincorporated town, and that the rule applicable to trains running through country districts applied in Fullerton, because it was an unincorporated town. This is a misconception of the rule fixing the reciprocal rights of the parties, which has become well established in this state. In L. & N. R. R. Co. v. McNary's Adm'r, 128 Ky. 414, 108 S.W. 900, 32 Ky. Law Rep. 1269, 17 L. R. A. (N. S.) 224, 129 Am. St. Rep. 308, and, after a full examination of the authorities upon this question, we announced the following general rule: "This court has laid down in a long line of opinions that the railroad company ordinarily owes no duty to a trespasser until his peril is discovered, and that it is not liable for an injury to him, unless after his peril is discovered the injury to him may be avoided with proper care. This rule has been applied in all cases where the injury occurred in the country. L. & N. R. R. Co. v. Howard's Adm'r, 82 Ky. 212; Shackelford's Adm'r v. L. & N. R. R. Co., 84 Ky. 43, 4 Am. St. Rep. 189; Brown's Adm'r v. L. & N. R. R. Co., 97 Ky. 228 [30 S.W. 639, 17 Ky. Law Rep. 145]; Goodman's Adm'r v. L. & N. R. R. Co., 116 Ky. 900 [77 S.W. 174, 25 Ky. Law Rep. 1086] 63 L. R. A. 657; C. & O. R. Co. v. See's Adm'r, 79 S.W. 252, 25 Ky. Law Rep. 1995, and cases cited. On the other hand, in cities and towns where the population is dense, and from the number of persons passing the danger to life is great, a different rule applies; and in such localities it is the duty of those operating railroad trains to moderate the speed of the train, to give notice of its approach, to keep a lookout and take such precautions as the circumstances demand for the proper security of human life." And in L. & N. R. R. Co. v. Molloy's Adm'r, 122 Ky. 230, 91 S.W. 687, 28 Ky. Law Rep. 1116, we said: "The rule that the speed of trains must be moderated applies to cities and towns where the population is dense and the presence of persons may be anticipated on the track at crossings, but it does not apply to highway crossings in the country. While this crossing was within the corporate limits of the town, it was practically a country crossing. The rule is that at ordinary highway crossings in the country no rate of speed is negligent, but that, where the speed of the train is great, care in giving warnings of the approach of the train commensurate with the danger must be observed. Railroad Co. v. Goetz's Adm'r, 79 Ky. 442, 42 Am. Rep. 227; Parkerson v. L. & N. R. R. Co., 80 S.W. 468, 25 Ky. Law Rep. 2260. This being in effect a country crossing, the statute applies. Ky. Stats. 1903, § 786. Signals as required by the statute should be given. There was no town ordinance regulating the signals to be given, and the statute does not mean that less care may be exercised at a crossing like this when just inside the town boundary than if it was just outside of the town boundary." See, also, C., N. O. & T. P. Ry. Co. v. Harrigan's Adm'x, 149 Ky. 59, 147 S.W. 942. In I. C. Ry. Co. v. Murphy's Adm'r, 123 Ky. 794, 97 S.W. 730, 11 L. R. A. (N. S.) 352, we formulated the rule fixing a railroad's duty to trespassers upon its tracks, as follows: "Appellant admits that it owed a 'lookout duty' at the point where Murphy was struck. But is that all that the railroad company owed under such circumstances? It might do little good to keep a lookout on a train running at a high rate of speed, when, if the peril is seen, because of the rate of speed and weight of the train, it will be impossible to avoid the collision. The only advantage would be to give warning. We think the duty in such cases is to operate the train with the fact of the trespasser's presence in mind; that is, at a speed which has the train under control, and keeping such a lookout as will enable the operatives to give timely warnings of its approach, as well as to stop it in case of necessity before injury has been inflicted on the trespasser. Legislation has not regulated the speed of trains in such communities. Each case must rest till then upon its own facts. Whether the speed is so great as to amount to negligence will be a fact to be determined by the jury, for the circumstances will necessarily vary, according to the population, the use of the track for passage by foot or vehicle travelers, the obstruction to the view, and so forth." It is apparent, therefore, that appellant's duty to the appellee was not to be regulated by the fact that Fullerton was, or was not, an incorporated town, but by the facts of the case which bring it within the second clause of the rule as above announced in the McNary Case. Although Fullerton was not an incorporated town, it was a town in fact; and the place where the accident occurred was such a locality that the presence of persons on the track might be anticipated at any time.

2. It is further contended by appellant that Warnock went upon the tracks with knowledge of the train's approach, and was therefore guilty of contributory negligence, as a matter of law; and that, if he did not know of the train's approach, he was, under the circumstances of this case negligent as a matter of law in failing to discover it. If this contention were sound, it would take from the jury the question of negligence, and leave it with the court. That question, however, is not an open one in this state. It was expressly passed upon in L. & N. R. R. Co. v. McNary, 128 Ky. 420, 108 S.W. 902, 32 Ky. Law Rep. 1272, 17 L. R. A. (N. S.) 224, 129 Am. St. Rep. 308, where we used this language: "To hold as a matter of law that the footman is guilty of contributory negligence barring a recovery for his injury whenever he goes upon a railroad track without stopping, looking, or listening would be practically to exempt railroads from all responsibility in cases of this sort; for there are few cases indeed where the footman if he stopped, looked, or listened could not save himself by stepping to one side and waiting for the train to pass. But the fact is that a person thinking of his own business is sometimes unmindful of where he is, and will get on the railroad track before he is aware of it, or he will from other causes be endangered from passing trains. So it is that in crowded localities, when the presence of persons on the track is to be anticipated, a lookout is required of those operating trains, and notice of their approach and such moderation of speed as will make a lookout and signals of the train's approach available for the safety of the traveling public. In each case the question whether the traveler used proper care will depend on a number of circumstances, such as the number of trains passing, the warning of the train's approach, and the circumstances surrounding him. In this state, if there is any evidence, the question is for the jury, and the scintilla rule applies to questions of contributory...