Griffin v. Chesapeake & O. Ry. Co.

• Decision Date: 18 April 1916
• Citation: Griffin v. Chesapeake & O. Ry. Co., 184 S.W. 888, 169 Ky. 522 (Ky. Ct. App. 1916)
• Parties: GRIFFIN v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

184 S.W. 888

169 Ky. 522

GRIFFIN v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

April 18, 1916

Appeal from Circuit Court, Lewis County.

Action by James B. Griffin against the Chesapeake & Ohio Railway Company.Judgment for defendant on a directed verdict, and plaintiff appeals.Affirmed.

Allen D. Cole, of Maysville, for appellant.

Worthington Cochran & Browning, of Maysville, for appellee.

CLARKE J.

In December, 1910, appellant was taking some packages of evergreens on a sled, drawn by a horse and a mule, to the depot of appellee at Garrison, Ky. for shipment to Washington, D. C.To reach the depot he had to cross the railroad track, but when he got to the crossing, it was obstructed by a freight train.Upon being informed that the crossing would be obstructed for some time, probably half an hour, he let down some fences and drove through the fields along the side of the railroad track to a point opposite the depot where he stopped and began unloading the sled with the intention of carrying the packages, which were light, across the track to the depot.

The engine of a freight train was almost directly between him and the depot and about 20 feet from the team where it was stopped, and the ground where the team was standing was some 6 or 8 feet higher than the railroad track.

Soon after the team was stopped at this place, the engine was cut loose from the freight train and started up the track to switch some cars.When the engine started up, the team became frightened, and it required both the appellant and Mr Garrison, who was helping him unload the sled, to hold and quiet the animals.After the engine had gone away, Mr Garrison began again to unload the sled while appellant held the lines to control the team.

In a short time, and about the time the packages had been removed from the sled, the engine came backing down the track to couple to the train, when appellant's horses again became frightened, and ran away, upset the sled, and injured appellant.

To recover for his injuries he brought this suit, alleging that his injuries were caused by the gross negligence of appellee's servants in permitting the crossing to remain blocked an unreasonable length of time, and by said servant's carelessly and negligently causing and permitting the engine of said train to emit violent and unusual noises, and to move in such a manner as to frighten his horses and cause them to become unmanageable.

Appellant and Mr. Garrison testified that there were two men in the engine, presumably the engineer and the fireman, one of whom had his face turned in their direction and could have seen that appellant's horses were frightened by the starting of the engine, and that the engine when it started puffed, "popped off" steam and made a noise caused by the stopcocks being open; that engines do not ordinarily have the stopcocks open; that as the engine came back from the switch track and when it was about 90 feet distant from the team, the team began to scare again, appellant threw up his hands and hollowed to the man in charge of the engine to stop until he could get out with his team; that the engine did not stop, but continued to come back, making considerable noise as though the stopcocks were open and blowing off steam.

Appellant testifies that as the engine came back he saw one of the enginemen looking in his direction, which was the direction in which the engine was moving, and that he could have seen that the animals had become frightened at the engine's approach.

At the close of appellant's proof, the jury was directed to return a verdict in favor of appellee, and appellant's petition was dismissed.

Appellant contends that the place where he stopped the team was on appellee's right of way, while appellee claims that it was on a public street, as stated by appellant's witness Garrison, and we think the testimony sustains the latter contention.This is not, however, in our judgment, material, since it is conclusively shown that the place was not one to which shippers were invited or accustomed to be, nor where trainmen were bound to anticipate the presence of teams or in reference to which any duty of lookout was imposed.In order to reach this place appellant had to let down fences and drive through fields.It was not on the same side of the tracks as the depot, and it was up on an embankment where there was no reason why any employé of the company need ever look.

Appellant seeks to apply the doctrine applicable to persons upon the grounds of a railroad company by invitation to transact business, but the facts of his case do not justify it.Even if he was at the time upon the edge of appellee's right of way, he was a trespasser.

He certainly was not invited to that place by the company, and the cases of Ill. Cent. R. Co. v. Beauchamp,77 S.W. 1096, 25 Ky. Law Rep. 1429, andC., N. O. & T. P. R. Co. v. Rodes,102 S.W. 321, 31 Ky. Law Rep. 430, cited by his counsel, are not applicable to the case at bar.While the railroad company invites the public to come to its depot for the transaction of business, that invitation and its resulting duties only extend to the places used for the transaction of such business and does not extend to other places upon the company's premises, unless by special direction.

Having reached the conclusion that appellant was not upon the premises of appellee by invitation, but was either a trespasser, if upon the premises at all, or more probably upon a public street or premises adjacent to the company's right of way, it results that the duty owed to him by the trainmen consisted in simply doing whatever they reasonably could to avoid further frightening the team after discovering, if they did so, that it was frightened and the appellant in peril.In Cox v. Ill. Cent. R. Co.,142 Ky. 478, 134 S.W. 911, 32 L. R. A. (N. S.) 831, where the facts are not different in principle from those in the instant case, this court said:

"The persons in charge of an engine are not required to keep a lookout on premises or roads adjacent to the track for the purpose of discovering whether or not horses are being frightened by the train or engine, and are only under a duty * * * to prevent frightening a horse after they have discovered his fright."

And the case of L. & N. R. Co. v....