L. & N.R. Co. v. Bennett's Admr.
| Decision Date | 24 February 1925 |
| Citation | 207 Ky. 498 |
| Parties | Louisville & Nashville Railroad Company v. Bennett's Administrator. |
| Court | Kentucky Court of Appeals |
Appeal from Bell Circuit Court.
LOW & BRYANT and WOODWARD & WARFIELD for appellant.
B.B. GOLDEN and E.F. BAKER for appellee.
Chester Bennett, a boy thirteen years and eight months of age, either jumped or fell from the side of a moving freight train, and received injuries that produced his death. Alleging that this was caused by the negligence of the defendant company, his administrator sued and recovered a judgment for $4,000.00.
On this appeal it is insisted that a peremptory instruction should have been given in defendant's favor at the close of plaintiff's evidence, none other being introduced.
The injury occurred at Wessel, a station on a coal line extension of the L. & N.R.R. running from Pineville to Kettle Island, a distance of about six miles, through a populous section, there being seven stations, including the termini. This line has been in operation for ten or twelve years. There are one passenger and one freight train running each way daily. The freight train out from Pineville delivers freight and places empties at the mines. On its return it carries out the loaded cars. For many years it has been the habitual practice of men and boys of different ages to ride daily upon the freight trains. Some crews have objected to this; trains have been stopped and parties ejected therefrom who would again board the train when it started; arrests have been made and fines inflicted in some instances.
On the other hand, other crews have encouraged the practice by receiving candy and cigarettes from parties so trespassing; and it appears that such conduct is generally permitted without objection, though but one trainman is identified by name as openly encouraging it, and he left the run several years ago.
Deceased had indulged in this practice for two or three months before his death. He had been warned against so doing by others, and it seems that his father objected to the practice, though he did not know his son was so doing.
On the day of the injury a party, including intestate, boarded the train at Wessel and Jensen and rode the empties up to Kettle Island, a distance of three or four miles. Upon arrival the crew placed the empties, backed up the loaded cars and had their dinner at the caboose, which was attached to the engine and in front of the loaded cars. The boys remained around the rear end of the train until it started and then climbed up the sides and on top of the cars. One of them riding on the front end of the fifth car from the rear and abount fifteen cars from the front, states that just before reaching Wessel the deceased came forward from the rear of the car upon which witness was riding and climbed down the ladder on the opposite side from him and he did not see him afterward. Another who was seated on the same side of the train some three or four cars in front of this one states that the deceased descended the ladder and as he reached the stirrup either jumped or fell from the car and struck the cattle guard. Witness had no means of informing the train crew when the train stopped, as they had taken the engine up the switch to the mines. The boys returned to where the deceased lay.
The only other eye-witness was seated on his wagon at Wessel, about fifty yards from the cattle guard as the train passed. He saw Chester swinging from the side of the car with his foot in the stirrup, but the train ran by a car on the siding which obstructed his view, and he did not see the accident. This was on the opposite side of the track from the platform, the inference being that Chester anticipated that his father would be at the station and was trying to avoid him. He received a fractured skull, was carried home and died a few days later without regaining consciousness.
It appears that the train crews were changed from time to time and none of those on the train at the time of the injury was identified as having encouraged or knowingly permitted such trespasses theretofore, nor is it positively proven that any of them saw or knew that the boys were on the train, as they were in the caboose next to the engine, and the boys were on the cars from the middle to the rear of the train. However, there was but one train each way daily and we may infer that the crew were familiar with the practice. Also the party had gone up to Kettle Island on the train and their presence must have been discovered by the trainmen; indeed, one of the brakeman saw and talked to the boys while at Kettle Island, and perhaps the crew could have anticipated that they would return on the train.
As it is not claimed that any of the trainmen saw the intestate on the side of the car or at all, at the time of the injury, no duty devolved upon them by reason of a discovered peril.
Under the facts did they owe him any other duty?
From what has been said we may assume that the trainmen anticipated a return of the party on this train, but if such was the case those so returning remained trespassers, or at most mere licensees, present by sufferance and to whom the employes would ordinarily owe no duty, unless and until they discovered them in a place of danger, Dalton's Admr. v. L. & N.R.R., 22 Rep. 97; and in general this rule applies to...
To continue reading
Request your trial