Davis v. Louisville, H. & St. L. Ry. Co.

• Decision Date: 04 December 1906
• Citation: 97 S.W. 1122
• Parties: DAVIS v. LOUISVILLE, H. & ST. L. RY. CO.
• Court: Kentucky Court of Appeals

97 S.W. 1122

DAVIS v. LOUISVILLE, H. & ST. L. RY. CO.

Court of Appeals of Kentucky.

December 4, 1906

Appeal from Circuit Court, Henderson County.

"Not to be officially reported."

Action by Sarah Davis against the Louisville, Henderson & St. Louis Railway Company. From a judgment in favor of defendant plaintiff appeals. Reversed, with directions for new trial.

Robt. D. Vance, Jno. F. Lockett, J. W. Johnson, and Vance &amp Lockett, for appellant.

Yeaman & Yeaman and Helm, Bruce & Helm, for appellee.

CARROLL C.

To recover damages for injuries sustained by being struck by an engine in the city of Evansville, Ind., the appellant brought this action, and upon the conclusion of her evidence in the court below a peremptory instruction was given to find for the defendant, now appellee. The propriety of his ruling is the question presented for our consideration, and it was evidently based upon the plea of contributory neglect relied on by appellee.

The facts are substantially as follows: The appellee company has a double-track railroad running from Evansville to Howell. This line of railroad is within the corporate limits of the city, and crosses St. Joseph avenue at a point near a large cotton mill, running thence by the cotton mill to the terminal point. St. Joseph avenue is on the south side of the railroad track, and the cotton mill and tenement houses connected therewith are on the north side. There is a passway between the cotton mill and the buildings known as the "Cotton Mill Block," and a pathway leads from St Joseph avenue across the railroad tracks to this passway. This path, which is 3 or 4 feet wide, is not a public street but has been used as a crossing by the public generally for 25 years. A large number of persons working in the cotton mill and living in that neighborhood use it every day, in numbers from 25 to 75, in going to and from St. Joseph avenue. Appellant, on the day the accident occurred, left St. Joseph avenue at the point this path intersects it, and walked up the path towards the railroad tracks, on her way to the cotton mill, where she was employed as a laborer. She wore a sunbonnet, and when she had crossed the first track her little boy called to her, and she looked around. She did not see or hear the train approaching, and did not know what part of the engine struck her. The engine was backing from Evansville to Howell on the track nearest to the cotton mill. The bell was not ringing, nor was any warning given of its approach. There were no persons on the engine, except the engineer and fireman, who were in the cab, and so far as the record shows neither of them saw appellant until after the injury. It is probable they did not see her as she approached the track, because the tender interfered with their vision. Possibly they were not keeping a lookout. At the point where the path crosses the railroad tracks, the track is straight for a distance of two squares on each side, and, as the accident happened about noon on a bright day, it is the contention of appellee that appellant by the exercise of ordinary care could have seen the engine, which was running about 8 or 10 miles an hour, and have avoided being struck by it, and that her injury was due entirely to contributory negligence upon her part. For the appellant it is insisted that it was the duty of those in charge of the engine, in approaching this passway used for so many years by the public with the knowledge and acquiescence of the railroad company, to give warning by ringing the bell or giving other signal, or to have some person stationed on the tender to keep a lookout for persons who might be crossing the tracks at this point, and that the failure to give any warning or keep any lookout was such a breach of duty on its part as renders it liable for damages, and that the question as to whether the approximate cause of the injury was the negligence of appellee or the contributory neglect of appellant was a question for the jury, and not the court.

Appellant was not a trespasser at the time and place she received the injury. If she had been, the company would owe her no lookout duty; nor would it have been required to give warning of the approach of its engines, and would owe no duty except to exercise ordinary care to prevent injury after she was actually discovered in a place of peril. But, as has been frequently held by this court, where the public, with the knowledge and acquiescence of the railroad company, have continually used...