Kentucky Cent. Ry. Co. v. Smith

• Citation: 93 Ky. 449,20 S.W. 392
• Parties: Kentucky Cent. Ry. Co. v. Smith.
• Decision Date: 29 October 1892
• Court: Court of Appeals of Kentucky

20 S.W. 392

93 Ky. 449

Kentucky Cent. Ry. Co. v. Smith.

Court of Appeals of Kentucky.

October 29, 1892

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by Austin K. Smith against the Kentucky Central Railway Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

Pryor J.

At the September term, 1890, of the Kenton circuit court, the appellee recovered a judgment based on a verdict of $15,000 for damages on account of personal injuries sustained by him and caused, as is alleged, by the negligence of the appellant, the Kentucky Central Railway Company. The appellee, on the 7th of August, 1889, at the instance of Mrs Spotts, who lived at Eighth and Washington streets, in the city of Covington, had gone to purchase bread at the grocery of one Linn, located at the southwest corner of Ninth and Washington streets. Where Ninth street intersects Washington street there are three separate railway tracks laid on the last-named street. One of the tracks belonged to the Chesapeake & Ohio road, and the two remaining tracks to the appellant, lying west of the Chesapeake & Ohio track. The appellant had a switch on its tracks, the south end of it being, as the proof shows, about 100 feet from Ninth street. At the time of the injury the appellee (a boy) was about 13 years of age, and was temporarily residing with his uncle Dr. Kearns, and, after he had purchased the bread, in order to reach his uncle's house, or that of Mrs. Spotts, who had sent him on the errand, he had to cross Washington street. The Chesapeake & Ohio track was west of the tracks of the appellant, and after he had crossed the Chesapeake & Ohio track, while standing between that track and the tracks of the appellant, he was struck by the cars of the appellant knocked down, and both legs mashed to a pulp from the feet beyond each knee. Surgeons were at once sent for, and both legs amputated above the knee. It is shown by the testimony, and in no wise contradicted, that the place where the injury occurred on these two streets is in the central part of the city with regard to population, and was used and passed over by its citizens as much as any of the other streets. Both the appellee and the appellant had the right to the use of the street, with the duty on the part of the appellee to exercise such ordinary care and caution as pertains to one of his age to avoid coming in contact with the cars, and on the part of the railway company to use the highest degree of care in order to prevent injuring those who were using the street in passing either on foot or in vehicles. Such a high degree of care must necessarily attach to every railway company when operating its cars on the streets of a densely populated city, and when the travel otherwise than on the cars of the company is as constant as is usual on such streets. The character of the highway, and the travel upon it, often determine the degree of care to be exercised by both the company and the party injured. A greater degree of care must be exercised by the company when running its cars on a public street than is required to be exercised at the ordinary crossings in the country, and when there are three railroad tracks on a principal street, constantly used, as is shown in this case, extraordinary care must be shown on the part of the railroad company before it can be exempted from liability for injuring those who have the same right to use the streets that the company has. It is true the party injured may be guilty of such contributory neglect as to prevent a recovery, and his failure to exercise such care as an ordinarily prudent man would exercise, under the circumstances, may often be interposed as a defense. Whether any such defense existed in this case will be first considered. The train of the appellant was made up of the engine and six cars. The train or engine was running backwards, and was pushing, in advance of it, two gondola cars, and pulling four box cars. The train was going north, and the purpose was to make a running switch; that is, they were to place the four box cars on another track, without stopping the engine or train. While the train was in fact going north, the head of the engine, or the front part, was south. There were on the train, at the time of the accident, five employes. The engineer and fireman were in the cab of the engine. O'Donnell, the foreman, was on the front part of the engine,-that is, between the engine and the box cars that the engine was pulling,-and was there for the purpose of separating the box cars from the engine when the signal was given. One of the brakemen was on top of the box cars, and another brakeman setting the switch, or preparing to do so. There was no one on either of the gondola cars that were being pushed north to give warning to those on the street, or those crossing it, of the train's approach, and no watchman stationed at the crossing for that purpose. We shall assume that the bell was ringing to give notice to the passengers of the train's approach. The employes on the train so state, and there is no reason for discrediting them. When the time arrived for detaching the box cars the signal was given, and the engine, as the testimony conduces to show, increased its speed to get out of the way of the detached cars; and the boy, being alarmed by the cry of some one as to his danger, stepped back near the track of the appellant, was struck by the car in front that was being pushed north, and mangled as already stated.

He had crossed the Chesapeake & Ohio track on his way with his bread, and while standing at or near the place of the injury a train passed south on the track he had the moment before crossed; so there was a train going south that he had managed to escape, and one backing north at the same time, but on a different track, that inflicted the injury; and it seems to us it would be difficult for one more prudent and careful, by reason of his advanced years, to have heard the ringing of a bell with these trains under headway, or to have discovered that the engine...