Cincinnati, N.O. & T.P. Ry. Co. v. Brown

• Decision Date: 07 October 1921
• Citation: 192 Ky. 724,234 S.W. 455
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. BROWN.
• Court: Kentucky Court of Appeals

234 S.W. 455

192 Ky. 724

CINCINNATI, N. O. & T. P. RY. CO. v. BROWN.

Court of Appeals of Kentucky.

October 7, 1921

Appeal from Circuit Court, Lincoln County.

Action by Joel T. Brown, by, etc., against the Cincinnati, New Orleans & Texas Pacific Railway Company. From judgment for plaintiff, defendant appeals. Reversed for new trial.

K. S Alcorn, of Stanford, and John Galvin, of Cincinnati, Ohio for appellant.

Emmett Puryear, of Danville, Geo. D. Florence and W. S. Burch, both of Stanford, and Puryear & Clay, of Danville, for appellee.

CLARKE J.

This is an appeal from a judgment for $5,000 for personal injuries. At the time of the accident which occurred between 8 and 9 o'clock on the evening of March 15, 1918, plaintiff was 17 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 5 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 schoolhouse, churches, etc., and from 200 to 300 inhabitants. It is "scattered over a right smart little space," and, with the exception of the depot and some 9 or 10 residences, is located east of the railroad tracks, which run north and south. The schoolhouse is about one half a mile, and the business center of the village about 75 or 100 yards from the depot. The main street or public road through the village crosses the railroad tracks at right angles about 180 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 8 o'clock. They then started to the camp cars for the night, traveling 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 toward 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 handhold 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 tract, 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 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 10 feet of him; that he was running about 10 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 upon 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. Co. v. Elmore's Adm'r, 180 Ky. 733, 203 S.W. 876; C., N. O. & T. P. 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 employee 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 employee 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. Co. v. Hyatt, 191 Ky. 85, 229 S.W. 101; William's Adm'r v. C. & O. R. Co., 181 Ky. 313, 204 S.W. 292; L. & N. R. Co. v. Mullin's Adm'rs, 181 Ky. 148, 203 S.W. 1058.

It is insisted, however, that, considering plaintiff as an employee, 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 employees, 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 employee, than when he was so engaged. The company ought not, it seems, to be under a higher duty for the protection of an employee 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 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...