Cumberland R. Co. v. Walton

• Decision Date: 22 October 1915
• Citation: 166 Ky. 371,179 S.W. 245
• Parties: CUMBERLAND R. CO. v. WALTON. [a1]
• Court: Kentucky Court of Appeals

179 S.W. 245

166 Ky. 371

CUMBERLAND R. CO. v. WALTON. ^[a1]

Court of Appeals of Kentucky.

October 22, 1915

Appeal from Circuit Court, Knox County.

Action by William Walton against the Cumberland Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

P. D Black, and Black, Black & Owens, all of Barbourville, for appellant.

B. B Golden and Golden & Lay, all of Barbourville, for appellee.

SETTLE J.

This is an appeal from a judgment entered upon a verdict awarding the appellee, William Walton, $12,000 damages for injuries sustained by being run over by an engine and caboose operated on the track of the appellant, Cumberland Railroad Company in its switchyard at Artemus, this state. In view of the nature and extent of the injuries sustained by appellee, the amount recovered is not unreasonable, if the recovery was authorized at all.

The appellant's railroad lies wholly in Knox county, extends from Artemus, a village four miles from Barbourville, to Warren, where coal mines are located, and is only about eight miles in length. The principal business of the road is the transporting of coal from the mines, but in addition to its freight train, used for that purpose, it runs a passenger train, consisting of an engine and one or two old coaches between Artemus and Warren daily. It owns no rolling stock, but leases its freight engine, coal cars, passenger engine and coaches from other railroad companies. Besides the engineers, firemen and brakemen in charge of its passenger and freight trains, it employs a small number of men, perhaps less than a dozen, in maintaining its stations and roadbed and doing other work necessary to the operation of its business.

The appellee, Walton, was employed by appellant as a car repairer, and had served it in that capacity about six months prior to December 12, 1912, the day on which his injuries were received. Shortly after 6 o'clock on the morning of that day appellee went to the appellant's blacksmith shop in Artemus, where he made a fire in the forge and assisted in welding some irons. After this work was completed he was directed by Joshua Parrott, an employé of appellant and his foreman in the latter's service, to go to Warren for the purpose of making some repairs on the dwelling house of B. C. Milner, a son of the superintendent of the appellant company. It appears that he intended going to Warren on appellant's freight train, but that while he was away from the shop to get some tools to take with him, the freight engine and caboose, which had been standing on the main track near the station, went to the river, about a half mile distant, to take on sand and water, and when appellee returned to the shop he was erroneously informed by some one there that the freight train had gone to Warren, which made it necessary for him to take the passenger train soon to leave for Warren, to get aboard of which it was necessary for him to go to the depot building a hundred yards or more from the blacksmith shop. It turned out, however, that the freight train had not left for Warren as appellee was informed, and that its engine and caboose, which had gone to the river, were returning on the main track to the depot when appellee left the blacksmith shop to reach the depot for the purpose of taking the passenger train. So when the latter left the blacksmith shop he entered a narrow footpath leading up to the railroad track, where it turned and ran outside of and along the track to the depot. After walking along this path and outside of the ties for a distance of 50 or 70 feet from the blacksmith shop, he left it and stepped either upon the railroad track or upon the ends of the ties outside of the rail nearest him, immediately following which act he was struck in the side or back and knocked down by the returning caboose and engine of the freight train, resulting in the injuries complained of.

The ground of recovery set out in the petition is that the appellee's injuries were caused by the negligence of appellant's servants in charge of the freight engine and caboose, in failing to reduce its speed, maintain a proper lookout, and give the customary signals of its approach to the place of the accident. The answer of appellant denied the negligence charged, and pleaded contributory negligence on the part of appellee.

It is appellee's contention that appellant's tracks at the place of the accident were so used by its employés and others, and such use acquiesced in by appellant, as to impose upon the latter and its servants the duty of anticipating their presence thereon and of exercising ordinary care to maintain such regulation of the speed of their moving trains and such lookout and signals therefrom as would prevent injury to the persons using the track. It is the contention of appellant that it owed no lookout duty to appellee, and that his presence on the track at the time of the accident was not to be anticipated. That although he was its employé he was not at the time he was injured discharging any duty that he owed it; in brief, that he was a trespasser. Appellee and some of his witnesses testified that the railroad track at the place of the accident and between that and the depot was frequently used by appellant's servants and others. On the other hand numerous witnesses introduced by appellant testified that such use of the track was only occasional; and it is apparent from the testimony of the witnesses of both appellant and appellee that there was no necessity for such use of the track by any person, as the path from which appellee stepped on the track before receiving his injuries extended from the blacksmith shop and beyond it down to the depot; that it was of sufficient width to enable persons going to or from the depot up and down the railroad track to walk in comfort and without danger of coming in collision with passing trains; that in addition to the safe walking afforded by the path mentioned, there was and is, on the other side of the main track and between it and the only switch track in appellant's depot yard, ground or space, extending from a point above the blacksmith shop down to the depot, free of obstacles, and of sufficient width to prevent contact with the train on either track, which persons, not desiring to use the path, could walk on from the blacksmith shop to the depot.

The evidence was all to the effect that appellant's right of way on each side of the tracks at the place of the accident, as well as above and below it, was fenced; that there was no railroad crossing anywhere between the blacksmith shop and depot, and no residences, stores, or other buildings. In view of this situation no reason is apparent for the use of either of the railroad tracks as a walkway by appellee or other persons in passing between the blacksmith shop and depot or going up or down the railroad. It may be that in switching, coupling, or otherwise manipulating trains, the presence of some of the trainmen on the tracks at or near the place of the accident at times is necessary, but we can imagine no other cause for their use by other employés of appellant or pedestrians.

According to the evidence Artemus is a small village with a population of 250 or 300, and none of its residences, shops, or buildings are located with respect to appellant's railroad tracks so as to require or authorize their use by its inhabitants. On the contrary, they appear to be connected by the usual streets or highways, which render every part of the village accessible, without the use of appellant's railroad tracks. For the foregoing reasons, we must sustain the contention of appellant that the facts of this case are not sufficient to bring it within the rule that, where its employés required use of the track, or its use by the public generally with the knowledge and acquiescence of the railroad company has so continued as that the presence of such employés, or other persons, on them at the point where so used must be anticipated by it in running its trains, it will impose upon it the consequent duty of maintaining, in approaching such place of use, a lookout and giving warning of their coming.

In C. & N. O. Ry. Co. v. Nipp's Adm'x, 125 Ky. 49, 100 S.W. 246, 30 Ky. Law Rep. 1131, L. & N. 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. Co., 118 S.W. 348, and a number of other cases, in which it was sought to have the above rule applied, it was held that it should be confined to cities and thickly populated communities, and not extended to rural communities or sparsely settled places, although the track at those places may be used by a large number of persons. On the other hand, there are numerous later cases, such as C. & O. Ry. Co. v. Warnock's Adm'r, 150 Ky. 75, 150 S.W. 29;...