Hines v. Hopkins

• Decision Date: 21 February 1922
• Citation: 239 S.W. 792,194 Ky. 441
• Parties: HINES, AGENT, v. HOPKINS.
• Court: Kentucky Court of Appeals

239 S.W. 792

194 Ky. 441

HINES, AGENT, v. HOPKINS.

Court of Appeals of Kentucky.

February 21, 1922

Rehearing Denied April 28, 1922.

Appeal from Circuit Court, Garrard County.

Action by Mack Hopkins against Walker D. Hines, Agent, etc. Judgment for plaintiff, and defendant appeals. Reversed.

B. D Warfield, of Louisville, and Hunt, Northcutt & Bush, of Lexington, for appellant.

Lewis L. Walker, of Lancaster, and L. W. Bethurum, of Mt. Vernon for appellee.

SAMPSON J.

Appellee Hopkins was walking along a side track of the Louisville &amp Nashville Railroad near Molus, Harlan county, Ky. in November, 1918, when he was struck from behind by a freight engine and severely injured, for which he instituted an action in the Garrard circuit court, and recovered a verdict for $2,000 damages. The Director General of Railroads appeals from the judgment entered upon that verdict, and insists that the judgment should be reversed because: (a) The trial court refused to peremptorily instruct the jury to find for the appellant, Director General; (b) the court erred in admitting incompetent evidence for Hopkins; and (c) the court on its own motion gave to the jury erroneous instructions.

Hopkins was a section hand regularly engaged by the Director General at that time in the operation of the Louisville & Nashville Railroad, and boarded at a house very near the Molus Depot. The section gang consisted of 8 or 10 men, all of whom were required to meet at the toolhouse of the company at 7 o'clock in the morning, daylight saving time, for the purpose of beginning their day's work. The toolhouse was about one mile from the Molus Depot, and there was no road by which Hopkins could travel to the toolhouse except along the tracks of the railroad, unless he crossed the Cumberland river and went up on the west side thereof to a point opposite the toolhouse and crossed back to the railroad which, besides being a bad road, was very much out of his way. The Cumberland Valley at that point is very narrow, closed in on either side by high mountains. The railroad right of way occupies practically all of the east side of the valley at that point. Besides the main track there were two side tracks near Molus Depot. One of these side tracks was called the house track, used for loading and unloading freight at the Molus Depot, and the other side track began just a short distance south of the Molus Depot, and extended parallel with the main track south beyond the toolhouse at which appellee Hopkins was required to report each morning, and was known as the passing track. According to appellee Hopkins' testimony he left his boarding house about 20 minutes before 7, and started up the main track toward the toolhouse, but before he had gone far he crossed onto the side track, and was proceeding south when he was struck from the rear by one of the large freight engines then in use on the railroad, and which engine was at that time pulling 54 cars About that hour a passenger train from Harlan was due to pass on the main track going north toward Pineville, and appellee Hopkins, knowing this fact, was walking on the side track, and the freight train which struck him, and which was traveling south toward Harlan, took the side track at Molus for the purpose of allowing the passenger train to employ the main track.

It is the contention of appellee Hopkins, and his action is based upon the hypothesis, that he was, at the time of his injury, a licensee, and had a right to be upon the track at the time and place of his injury, and the operatives of the train were obliged to maintain a lookout for persons on the track at that point at that time of day, which duty they neglected to perform, causing his injury. In support of this insistence appellee says that as he was a regular employee of appellant, and was required to go to the toolhouse, which was situated beside the track at a point where there was no public highway or passway except over the tracks, and it was necessary for him to travel along the tracks in order to reach his place of employment, and being upon the premises of the company, he was as much entitled to a lookout duty and protection as if he were a licensee, a member of the general public, or, if not that, at least the same protection as if he had been in the line of his employment, working at repairing the track; and we think he is correct in his last contention, but in error as to his first. He says that there were at that time about 20 or 25 houses situated near the Molus Depot, in which a number of families lived; that at said place were three stores; that up in the direction in which he was going a short distance from Molus was a coal mine, at which 25 or 30 men worked, and that only a short distance away was a village named Layman, at which there were several houses and a number of people living; that a large number of persons on foot traveled up and down the railroad tracks; that between the hours of 6 and 7 of the morning, and after work time of an evening, there would be 30, 40 or 50 people traveling up and down on the track; that these facts were known to the Director General and his employees, and especially the operatives of trains, and by reason of these facts they were charged with the duty of maintaining, at that point, a lookout duty for persons upon the track.

We have never fixed with definiteness the exact number of persons using the tracks of a railroad longitudinally as a walkway at a given hour and place continuously which will constitute such pedestrians licensees, but we have held in the case of Willis' Administratrix v. L. & N. R. R. Co., 164 Ky. 124, 175 S.W. 18, that the use of railroad tracks by as many as 125 persons through the entire day was not sufficient to constitute such users licensees, and in the recent case of C., N. O. & T. P. R. R. Co. v. Brown, 192 Ky. 724 234 S.W. 455, we held that...