Illinois Cent. R. Co. v. Johnson

• Decision Date: 29 January 1909
• Citation: 115 S.W. 798
• Parties: ILLINOIS CENT. R. CO. v. JOHNSON.
• Court: Kentucky Court of Appeals

115 S.W. 798

ILLINOIS CENT. R. CO. v. JOHNSON.

Court of Appeals of Kentucky.

January 29, 1909

Appeal from Circuit Court, Ohio County.

"Not to be officially reported."

Action by John H. Johnson against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed for new trial.

H. P Taylor, Trabue, Doolan & Cox, and J. M. Dickinson, for appellant.

J. S Glenn, G. B. Likens, G. D. Black, and Ben D. Ringo, for appellee.

CARROLL J.

The opinion of this court on a former appeal can be found in 97 S.W. 745, 30 Ky. Law Rep. 142. It was then held on the facts shown by that record that Johnson did not receive the injuries complained of within the corporate limits of Fordville, or at a public crossing, and that he was a trespasser, and therefore not entitled to recover. The evidence on the trial from which this appeal is prosecuted is somewhat different from that presented in the record on the former appeal, so that it will be necessary to recite the principal facts.

The spur track upon which Johnson was walking when struck by the truck car runs from the depot, situated in the town of Fordville, to the junction, at which it intersects the main line, being a distance of some 900 yards. From the depot to a public crossing at the church, about one-half the distance from the depot to the junction, there is evidence conducing to show that the spur track runs in a street of the town called "Oak street," and it was attempted to be shown by appellee that Oak street continued from this public crossing to the junction, and that the track at the place where Johnson was struck, between the public crossing and the junction, was in the street. The evidence offered to show that the street continued from the public crossing to the junction is very unsatisfactory. At the place where Johnson was struck, the railroad is fenced on each side, which tends to establish that it was not on a street. There is no evidence in the record showing how, or by what authority, or from whom, the railroad obtained the right to run its track from the depot to the junction. Nor is there any evidence as to how, from whom, or when the town acquired, if it did so acquire, what is called by appellant's counsel, a street from the public crossing to the junction. Nor is the evidence sufficient to show that the town exercises any control or authority over the way occupied by the railroad tracks from the public road crossing to the junction. The evidence introduced for appellee tends to establish that he was within the corporate limits of the town when struck and injured by the car, while that offered by appellant is to the effect that he was about 100 yards outside of the corporate limits; but this feature of the case is not of controlling importance.

It was also attempted to be shown that the railroad track at the place of the accident was used by the public in walking to and from the town to the junction to such an extent as to put the company upon notice of this condition with its resulting duties; but the evidence upon this point was entirely insufficient to show such a use of the track at the place of the accident as would be necessary to put the company upon notice or to impose upon it the duty required at populous places or points where the presence of persons upon the track must be...