Craddock v. Louisville & N.R. Co.

• Decision Date: 11 April 1891
• Citation: 16 S.W. 125
• Parties: CRADDOCK v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

16 S.W. 125

CRADDOCK v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

April 11, 1891

Appeal from circuit court, Hart county.

"Not to be officially reported."

Roussean & Scott and Thos. H. Hines, for appellant.

Lewis McQuown, for appellee.

HOLT C.J.

The appellant, John T. Craddock, sues the appellee for damages for injuries resulting from being struck by one of its trains. The petition avers that it occurred through the gross and willful neglect of those in charge of the train. This is denied, and the affirmative charge made that it resulted from the appellant's own negligence. It occurred a short distance from the passenger depot at a small station upon the road. The appellant was standing upon a long platform of the appellee; and when he knew the train was near at hand, and in plain sight, he suddenly started across the track towards a cattle-pen, which was directly opposite to where he had been standing, and was struck by the locomotive. His leg was broken, and he was otherwise injured. He says he supposed the train, which was a freight, would stop at the station.

There was no public crossing where he attempted to cross, nor was there any town at that immediate point. It was within the corporate limits of one, however, and quite near the station. It was at such a point that, while the train had the exclusive right of way there, yet those in charge of it were bound to be on the lookout for trespassers by reason of the likelihood of their presence, and because it was a place apt to be frequented by the public. In such a case an exception to the general rule grows out of the necessity of the case and a proper regard for human life. It is not shown, however that such trains as that by which appellant was injured always stopped at that station; and it is abundantly proven and virtually conceded in argument, that proper notice of the approach of this one was given by the repeated blowing of the whistle. The principal ground of complaint is that considering the locality, the speed of the train was so great as to make the company chargeable with what counsel term "willful neglect;" and therefore, even if the appellant was neglectful of his safety, yet contributory neglect is not available as a defense. Gross and willful neglect must not be confounded. The term "willful," as equivalent to "wanton," is often used in the consideration of cases; but, strictly speaking, "willful" neglect, as...