L. & N.R. Co. v. Snow's Admr.

• Decision Date: 20 June 1930
• Citation: 235 Ky. 211
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & Nashville Railroad Company v. Snow's Administrator.

235 Ky. 211

Louisville & Nashville Railroad Company v. Snow's Administrator.

Court of Appeals of Kentucky.

Decided June 20, 1930.

1. Railroads. — Pedestrian killed by train while walking across toll bridge which had been abandoned except for footway and certain trains was not trespasser.

Defendant railroad company, owner of bridge, had abandoned bridge except for footway and for trains used in constructing new bridge, and, although section of old bridge was torn out, temporary flooring was relaid later, so that footway could be used, and pedestrians used it thereafter just as they had used it before interruption caused by temporary removal of flooring. Nothing was done by defendant that constituted notice to public that permission to use footway had been withdrawn.

2. Negligence. — "Invitation," as regards duty of owner of premises, is inferred where there is common or mutual advantage, whereas "license" is inferred where object is mere pleasure or benefit of person using it.

3. Negligence. — Where owner, by conduct, has induced party to use private way in belief it is open for public use, he must maintain way in reasonably safe condition.

4. Railroads. — Railroad abandoning toll bridge had duty to pedestrian, so long as it maintained footway, to exercise ordinary care to keep it in reasonably safe condition.

The footway on railroad's toll bridge had been constructed in first instance for use of public, and, although remainder of bridge had been abandoned, footway was being used, at time pedestrian was struck by train while crossing bridge, by the public, and railroad had not revoked permission for public to use it.

5. Railroads. — Where pedestrian was struck by train while crossing bridge, question whether railroad negligently failed to keep walk-way in reasonably safe condition held for jury.

6. Negligence. — Although negligence cannot be presumed it may be inferred from proven facts.

7. Railroads. — Whether pedestrian's death was caused by stumbling over exposed end of guard rail on bridge in darkness and falling under passing freight train held for jury.

8. Evidence. — Law presumes one will not commit suicide.

9. Railroads. — Contributory negligence of pedestrian killed by train while crossing bridge at night held for jury.

10. Appeal and Error. — Instruction as to duty of railroad in keeping toll bridge in safe condition, more favorable to defendant than one to which it was entitled, held not ground for complaint.

The instruction was in effect that, if jury believed from evidence that railroad operated bridge as toll bridge for vehicular traffic, and as incident to such operation maintained and provided walkway for pedestrian traffic, it was its duty to use ordinary care to keep walkway in reasonably safe condition for travelers, but, under the circumstances of the case, it was duty of railroad company to keep walkway in reasonably safe condition, regardless of any connection it may have had with operation of bridge as toll bridge.

Appeal from Franklin Circuit Court.

HUNT & BUSH, B.L. KESSINGER and MORRIS & JONES for appellant.

LESLIE W. MORRIS and MARION RIDER for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

This appeal is prosecuted to reverse a judgment for $10,000 recovered against the appellant, Louisville & Nashville Railroad Company, the defendant below, by L.L. Snow, administrator of the estate of Clarence Snow, deceased.

Clarence Snow was run over and killed by a freight train upon the Kentucky river bridge of defendant at Frankfort about 10 o'clock p.m. on February 2, 1929. His administrator sued for his death, and in his petition alleged that a footway provided over the bridge for pedestrians by defendant was out of repair and dangerous, and because thereof Snow was killed. In an amended petition he alleged that, prior to the year 1869, the Louisville, Cincinnati & Lexington Railroad Company constructed the bridge mentioned in the petition over the Kentucky river in the city of Frankfort, and in August, 1869, entered into a written contract with the city of Frankfort and Franklin county whereby it gave to the city and county the privilege of constructing a floor with protecting side rails thereon on its railroad bridge over the Kentucky river at Frankfort, so that the bridge could be used by vehicles and pedestrians; and the city and county were granted the right to operate the bridge as a toll bridge and to collect tolls from the public using it, such tolls not to be in excess of the tolls allowable under the railroad company's charter.

The contract further provided that the Louisville, Cincinnati & Lexington Railroad Company should have the right to terminate the contract at any time by paying to the city of Frankfort and the county of Franklin the amount expended by them in flooring the bridge. It was further alleged that shortly after the execution of this contract the city and county constructed a floor in the bridge, and set aside and established a part of the floor for vehicular traffic and a part as a walkway for pedestrians, and operated the bridge as a toll bridge until June 26, 1882, charging toll, however, only to those of the public who crossed the bridge in vehicles; that the Louisville & Nashville Railroad Company, having acquired the right of the Louisville, Cincinnati & Lexington Railroad Company, exercised the right reserved in the contract to terminate it, and on June 26, 1882, took over and assumed the control and operation of the bridge, after paying the city of Frankfort and the county of Franklin for their interest therein as provided in the contract. It was further alleged that from that date the Louisville & Nashville Railroad Company continuously operated the bridge as a toll bridge, and that, in connection with its operation of the same as a toll bridge, it set aside and dedicated to public use a walkway for foot passengers over the bridge as well as a way for vehicular traffic.

The driveway occupied the space between the steel girders and the corresponding space over the eastern approach to the bridge. The footway was constructed outside the steel girders and along the north side of the eastern approach to the bridge. East of the steel girders a guard rail consisting of timbers about 6 by 8 inches was placed between the driveway and the footway. Along the north side of the footway, which was on the down river side of the bridge, was a handrail. From the north rail of the railroad track in the driveway to the guard rail was 3.65 feet and from the guard rail to the handrail along the north side of the bridge was 2.2 feet.

In 1928 the railroad company began the construction of a new bridge immediately south of, and parallel to, the old bridge. In August, 1928, the old bridge was closed to all traffic except trains for the installation of machinery and equipment necessary for the construction of a new pier in the Kentucky river. About 100 feet of flooring between the steel girders and the east end of the bridge was removed. A corresponding portion of the guard rail, which separated the driveway and footway, was also removed. After a few days the flooring was restored but the portion of the guard rail that had been removed was not replaced, and, as a result, the end of the remaining section of the guard rail, extending several inches above the floor, was left exposed at a point about 48 feet east of the steel girders. There was an iron bolt through the exposed end of the guard rail which extended slightly above the rail. Vehicular traffic was not again permitted to use the portion of the bridge that had been set aside as a driveway, but, as soon as the flooring was replaced, pedestrians, without objection from the railroad company, began using the footway just as they used it theretofore, and continued so to use it until the accident to Snow in February, 1929.

A large number of people live on the west side of the Kentucky river in what is known as Belle Point, which is within the corporate limits of Frankfort, and the record discloses that from 300 to 600 persons used the footway in question daily. Appellee's intestate lived in Belle Point, and at the time of his death was employed at his father's grocery store in Frankfort on the east side of the river. About 9:30 o'clock on the night of the accident he left his father's store and started to his home in Belle Point; his route leading over the bridge. With him was his fourteen year old son. At the east end of the bridge Snow met J.W. Poe, and a short conversation took place, after which Snow started west across the bridge. Poe was the last witness who saw him alive. About this time an east-bound freight train reached the west end of the bridge. While the train was on the bridge and in motion, employees of the railroad company at each end of the bridge were attracted by the outcry of the boy. After the freight train had passed over the bridge, they found Snow's mutilated body scattered along the track. Bloodstains were found along the track near the exposed end of the above-described guard rail and extending some distance east. An examination of the train at a station a few miles east of Frankfort disclosed blood on the front truck of the eighteenth car back of the engine and upon the wheels of other cars toward the rear of the train. No blood was found upon the engine or any of the trucks of the first seventeen cars. No one saw the accident, except Snow's son, who was not permitted to testify.

It is appellee's contention that the evidence supports his theory that his intestate stumbled over the exposed end of the guard rail and fell under the train. On the other hand, it is contended by appellant that such a theory is speculative, is not sustained by the evidence, and that no one knows the cause of the accident, if it was an accident.

Appellant insists that the judgment should be reversed for the following reasons:

(1) Plaintiff's petition, as amended, does not state a cause...