Illinois Cent. R. Co. v. Pierce's Adm'x

• Citation: 194 S.W. 534,175 Ky. 488
• Parties: ILLINOIS CENT. R. CO. v. PIERCE'S ADM'X.
• Decision Date: 08 May 1917
• Court: Court of Appeals of Kentucky

194 S.W. 534

175 Ky. 488

ILLINOIS CENT. R. CO. v. PIERCE'S ADM'X.

Court of Appeals of Kentucky.

May 8, 1917

Appeal from Circuit Court, Caldwell County.

Action by W. D. Pierce's administratrix against the Illinois Central Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

John C Gates, of Princeton, Blewett Lee and R. V. Fletcher, both of Chicago, Ill., and Trabue, Doolan & Cox, of Louisville, for appellant.

John G Miller and Albert Morse, both of Princeton, Ky. and R. M Holland, of Owensboro, for appellee.

CLARKE J.

W. D. Pierce was employed as a flagman for a year prior to his death by the Illinois Central Railroad Company, working on freight trains into and out of Princeton, Ky. where he resided. He did not have a regular run, but worked only irregularly and at intervals as a substitute when for any reason the regular flagman was unable to work. To supplement his earnings he had accepted employment for such time as he was not employed by the railroad company to solicit insurance for a fraternal order. About a mile and a half west of Princeton the railroad company maintains an extensive yard, just east of which and a few feet south of one of its main tracks there is a small building, called the blockhouse or yard office, at which the company maintains a telegraph office, attended by an operator, and in which is provided by the company for the use of its employés a register of its trains and trainmen, and a series of small boxes, in which is placed mail and orders directed to employés.

A few days prior to his death Pierce had written to the railroad company a request for passes for himself and wife so that he might go to Marion, Ky. in connection with his insurance business, and his wife to Central City for a visit. About noon, on Sunday, October 24, 1915, desiring to use the expected passes on the next day, Pierce left his home in Princeton and went to the blockhouse to get his mail, where he arrived shortly before 1 o'clock, got some mail, and left the office at a door opening toward the south. He then walked west on the office platform to the western end of the building and north across the western end to the northern line of the building, where he left the platform, and was last seen alive by the telegraph operator walking between the office and the railroad tracks in the direction of Princeton, with his head down as though reading something he had in his hand, presumably some of the mail he had just received. The operator's attention was then directed to an approaching through passenger train from the west, also going toward Princeton, which struck and killed Pierce at a point about 35 feet east of the office, as he stepped upon the railroad track in front of the approaching train in ignorance of its approach. Neither the engineer nor the fireman saw Pierce until after he was struck by the engine.

To recover for his death his wife, who was appointed his administratrix, filed this action alleging that at the time of the accident the Illinois Central Railroad Company, through its agents and employés, was operating its train at a high, dangerous, and reckless rate of speed, and negligently drove said train and engine upon and against her intestate; that the place of the accident was very much frequented by the company's employés and others whose occupation and business with the company called them there; that decedent at the time of his death was there on business with, and by invitation of, the Illinois Central Railroad Company, and his death resulted from the company's negligence in failing to provide proper means of ingress and egress to and from said office, and in negligently operating its trains at said place. The Illinois Central Railroad Company as lessee, and the Chicago, St. Louis & New Orleans Railroad Company as owner and lessor of the railroad tracks, were made defendants, as were W. B. Curley, engineer, and R. C. Ludlow, fireman, in charge of the engine that killed Pierce. The defendants in separate answers traversed the allegations of the petition, and pleaded contributory negligence.

The trial resulted in a verdict and judgment in favor of plaintiff against all of the defendants in the sum of $7,500, and the defendants have appealed, setting up as errors entitling them to a reversal: First, the refusal of their request, at the conclusion of plaintiff's testimony, and again at the conclusion of all the testimony, for a peremptory instruction; second, the refusal of the court to give three instructions offered by the defendants; third, that the instructions given by the court were erroneous; fourth, the admission of incompetent evidence offered by plaintiff; and, fifth, that the verdict and judgment are not supported by and are flagrantly against the evidence.

1. The principal question involved upon this appeal, and the first question to be decided, is whether at the time of the accident decedent was a trespasser, a licensee, or upon the railroad track as a member of the general public at the place where the accident occurred at the company's invitation. Counsel for appellant insist that he was a trespasser to whom no duty of lookout or warning was due, while counsel for appellee are equally insistent that decedent was upon the railroad tracks when he met his death as a member of the public upon the invitation of the company, or, at least, as a licensee, to whom the defendants owed the duty of lookout and warning.

It is perfectly clear, from the uncontradicted evidence of appellee's witnesses, that decedent, upon a purely private mission of his own, and not in the discharge of any duty as an employé, had gone, upon the occasion of the accident, to the yard office, maintained and used by the company solely for its business with its employés in the operation of its trains. It is also conclusively shown that members of the public were not invited there for the transaction of business by the company, and that no such use of the office or of the company's tracks at or near the office or the place of the accident was exercised by the public. Such employés as were in the habit of using the company's tracks in going to and from the office did so in going to and from their work, and at such times are, under the decisions of this court, held to be engaged in their duties as employés, charged with the assumption of the risks of their employment. L. & N. R. Co. v. Walker, 162 Ky. 209, 172 S.W. 517; Sandy Valley & Elkhorn Ry. Co. v. Bridgman, 168 Ky. 219, 181 S.W. 1101.

Decedent was not then at the time of the accident upon the company's premises as an employé; neither was he a trespasser, in the common or ordinary meaning of the term, because of the fact that the company had placed in one of the boxes in the office for delivery there to him a letter, not connected with its business, but upon matters purely private to decedent; and it will be assumed that by so doing the company had granted to him permission to go upon its premises at the time of the accident to get the letter, although it is not entirely clear that such permission was granted to him except as an employé, and at such times as in the discharge of his duties it was necessary for him to go to the office. Viewed in the most favorable light to appellee, decedent was, upon the occasion of his death, upon the premises of the company as a member of the public, a bare licensee, and as such the company owed him the duty of lookout and signals only if the tracks at that place were habitually used by a sufficient number of persons to make the company anticipate their presence there.

The only use shown of...