Illinois Cent. R. Co. v. Murphy's Adm'r

• Decision Date: 21 November 1906
• Citation: 123 Ky. 787,97 S.W. 729
• Parties: ILLINOIS CENT. R. CO. v. MURPHY'S ADM'R.
• Court: Kentucky Court of Appeals

97 S.W. 729

123 Ky. 787

ILLINOIS CENT. R. CO. v. MURPHY'S ADM'R.

Court of Appeals of Kentucky.

November 21, 1906

Appeal from Circuit Court, Muhlenburgh County.

"To be officially reported."

Action by James H. Murphy's administrator against the Illinois Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Trabue Doolan & Cox, J. M. Dickenson, and Browder & Browder, for appellant.

S. R Creedon, R. Y. Thomas, and E. A. Taylor, for appellee.

O'REAR J.

James H. Murphy, while walking along the railroad track, was struck and killed by one of appellant's passenger trains in the town of Central City. This is a suit to recover damages for his death; it being alleged that the injury occurred through the negligent operation of the train. Central City is a town of the fifth class. Just what its population is is not shown but from the record it may be gathered that it is a town of 2,000 or more people. Two railroads cross there, and it is a terminus of a division of appellant's road. Several mining towns or villages are in the same vicinity, and within from two to four miles. Appellant's railroad runs through the town, so that its line of road occupies, in part, what the public use as a street for many purposes. At the point where the injury occurred, which was in appellant's switchyard, it does not appear that there was a public street or highway, but it does appear that, notwithstanding it was used by the public, and had been for 15 years or longer, as a roadway by foot passengers, with the knowledge of the operatives of the trains. The use is shown to have been so extensive, constant, and continued as to raise a presumption of knowledge by the company that it was so used. The train which struck Murphy was a heavy passenger train, known as the fast mail, and was running at from 25 to 30 miles an hour. Murphy was a young man, about 30 years old, in full possession of his faculties, for aught that appears. He was walking beside the track on the end of the ties, and meeting the train which struck him. There is a conflict in the evidence whether the locomotive struck him in front or the rear of his body. Appellant's witnesses who saw the accident (three in number) say it struck him in the front. One witness for appellee, who testified that he saw the accident, says decedent was standing with his side, "or rather his back," to the track, seemingly talking to some one on a locomotive which was standing on a siding some 10 or 12 feet away, and which was "popping off" steam. The body showed that the ribs had been broken from the spine by the contusion, and there was a large bruise there. The clothing of the deceased showed torn places corresponding with the lick in the rear of the right side. All agree that he was struck by the pilot beam of the locomotive as it passed him. He was hurled some 15 or 20 feet to the side and away from the track on which he had been walking. The engineer says he saw Murphy when about 125 or 150 yards from him; that he was facing the train, and coming toward it in a fast walk or slow trot; that he supposed he would get out of the way in time until within 25 yards of him, when he realized he would not, and then the emergency brakes were applied and the alarm whistle sounded. Of course, then the man had been struck. The train ran its length (about 120 yards) before it was stopped. He says it was stopped as soon as possible after the peril of deceased was discovered. There is some evidence that deceased was walking along with head down, apparently not noticing the coming train. No one testifies that deceased saw the train, or indicated by act that he was conscious of its proximity.

A motion for a peremptory instruction on behalf of the defendant was refused. It is argued that this was error upon the facts stated, it being assumed that Murphy was a trespasser on the track of appellant, to whom it owed no duty till his peril was discovered, and then only to do what was in its power thereafter to avoid injuring him. We do not think the peremptory instruction should have been granted. Appellant relies on the following cases, which it insists are conclusive of the principle contended for: Manning v. I. C. R. R. Co., 84 S.W. 565, 27 Ky. Law Rep. 142; Yates v. I. C. R. R. Co., 89 S.W. 161, 28 Ky. Law Rep. 75; L., H. & St. L. Ry. Co. v. Hathaway, 89 S.W. 724, 28 Ky. Law Rep. 628, 2 L. R. A. (N. S.) 498; Smith v. I. C. R. R. Co., 90 S.W. 254, 28 Ky. Law Rep. 724; L., H. & St. L. Ry. Co. v. Jolly, 90 S.W. 977, 28 Ky. Law Rep. 989; L. & N. R. R. Co. v. Daniel, 91 S.W. 691, 28 Ky. Law Rep. 1146, 3 L. R. A. (N. S.) 1190; L. & N. R. R. Co. v. Redmon, 91 S.W. 722, 28 Ky. Law Rep. 1293; M. & O. R. R. Co. v. Dowdy, 91 S.W. 709, 28 Ky. Law Rep. 1371; Johnson v. L. & N. R. R. Co., 91 S.W. 707, 29 Ky. Law Rep. 36; Beiser v. C. & O. Ry. Co., 92 S.W. 928, 29 Ky. Law Rep. 250; Ward's Adm'r v. I. C. R. R. Co., 56 S.W. 807, 22 Ky. Law Rep. 191; L. & N. R. R. Co. v. Molloy's Adm'r, 91 S.W. 685, 28 Ky. Law Rep. 1113; Gregory v. L. & N. R. R. Co., 79 S.W. 238, 25 Ky. Law Rep. 1986; Brown v. L. & N. R. R. Co., 97 Ky. 228, 30 S.W. 639.

There seems to be a misapprehension of the principles governing the cases cited, and a failure to note the distinguishing features of the one at bar. The cases cited are divisible into two classes, though really they all belong in principle to a single class. The first division includes Manning v. I C. R. R. Co., Brown v. L. & N. R. R. Co., Yates v. I. C. R. R. Co., L. & N. R. R. Co. v. Redmon, L. & N. R. R. Co. v. Molloy, and Gregory v. L. & N. R. R. Co. Each of those injuries was inflicted upon persons walking along or driving across the railroad track in or near villages or sparsely settled hamlets. The court applied to them the same principle as governs such cases where the injured person is walking along the railroad in the country. They were treated simply as trespassers, to whom no lookout duty was owed, and no duty at all till their peril was actually discovered by those operating the trains. L., H. & St. L. Ry. Co. v. Jolly, Smith v. I. C. R. R. Co., L., H. & St. L. Ry. Co. v. Hathaway, M. & O. R. R. Co. v. Dowdy, and L. & N. R. R. Co. v. Redmon, were all cases arising in the country, except the latter, which, though in an incorporated village, was on the company's inclosed right of way, and beyond the line of habitations within the village corporation. It was likened in the opinion to a rural case. Johnson v. L. & N. R. R. Co. was an injury in the private stockyards of the company, where the plaintiff had no right to be, and was not expected to be, and he was consequently treated as a trespasser. Beiser v. C. & O. Ry. Co. was an injury on an elevated bridge, and while in a large city, the principle of a rural trespasser was applied, because the trespass was positively forbidden by the railroad company, and there was not enough of it to differentiate it from a trespass in a sparsely settled locality. Ward's Case is mainly relied on. That injury occurred in a large city, in the yards of the company. There is nothing to show that anybody ever used that point as a footway. The decedent was held in the opinion to be an unexpected trespasser, who came to his death, so far as the evidence showed, entirely by his own inadvertence. Nothing was shown to the effect that his presence was actually known to those operating the train, or that they had reason to expect his presence. L. & N. R. R. Co. v. Daniel, on this point, was treated in the same way. All these cases are reducible to the one principle, that a trespasser on a railroad track, at a point where his presence is...