Goodman's Admr. v. Louisville & N. R. R. Co.
| Citation | 116 Ky. 900 |
| Parties | Goodman's Admr. v. Louisville & N. R. R. Co. |
| Decision Date | 01 December 1903 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM HART CIRCUIT COURT.
FROM A JUDGMENT DISMISSING THE ACTION, PLAINTIFF APPEALS. AFFIRMED.
McCANDLESS & JAMES, FOR APPELLANT.
J. A. MITCHELL, E. W. HINES AND B. D. WARFIELD, FOR APPELLEE.
The appellant, J. M. Craddock, as administrator of Isaac Goodman, deceased, brought this suit to recover damages for the death of his intestate. The petition alleges that "on the 27th day of August, 1901, the defendant, its agents and servants, negligently and carelessly ran one of its freight trains over the body of the said Isaac Goodman, inflicting upon him injuries which instantly resulted in his death." Defendant, the Louisville & Nashville Railroad Company, denied the alleged negligence, and in a second paragraph pleaded that the death of the plaintiff's intestate was the direct result of its own contributory negligence. The reply was a traverse of the plea of contributory negligence. The trial in the circuit court resulted in a peremptory instruction to find for the defendant and a judgment dismissing the action, from which this appeal is prosecuted.
It is complained that the trial court erred in the peremptory instruction, and also in rejecting competent evidence which was offered by the defendant. It appears from the bill of evidence that the decedent was run over and instantly killed by one of appellee's south-bound freight trains 2 miles north of Horse Cave station, and 230 yards south of a public road crossing, and about the same distance from a private crossing on the north, in a cut 7 or 8 feet deep. It is further shown that the deceased was an ordinarily intelligent boy, 11 years of age, and that he went upon the railroad right of way with a bag for the purpose of picking up pieces of coal which had fallen from the tender of passing engines, and that he had been in the habit of doing this, and had been cautioned, both by his father and older brother, about the danger of passing trains. Robert Wilkerson, a brakeman in the employ of the railroad company, was the only witness to the accident who testified. He was called by plaintiff, and testified that he was sitting in the cab of the engine on the opposite side from the engineer, and gave the usual signals of the approach of the train to the public crossing; that the train was traveling at between 32 and 35 miles an hour, and consisted of 28 loaded freight cars; that after he had passed the public road crossing he saw an object on the track about 150 yards ahead, which looked like a piece of paper, but that when the engine had approached within about 30 feet of the object he discovered the deceased lying on the track between the rails; that the engineer immediately applied the brakes, and stopped the train after it had run about two car lengths farther than the length of the train (or, in other words, that the body of the boy was about two car lengths behind the caboose); and that it could not have been stopped any sooner, or in time to have avoided running over the deceased after it was discovered that the object upon the track was the deceased. The plaintiff introduced testimony tending to show that it was possible for the deceased to have been discovered by the engineer at the public crossing, which was about 230 yards from the point where he was lying at the time he was killed, and it is contended that this was sufficient evidence to have justified the jury in believing that decedent was seen by the defendant's agents in charge of the train in time to have avoided the accident; or that, in any event, it was sufficient evidence to have authorized the submission of the case to the jury. In response to this contention it may be said that this court has repeatedly held that a railroad company owes no duty to trespassers upon its track at places not frequented by the public by right or permission, until their peril has been discovered. And we do not understand that this well-grounded rule was changed by the decision in Becker v. L. & N. R. R....
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