L. & N. R. R. Co. v. Smith's Admr.
| Citation | 186 Ky. 32 |
| Court | Court of Appeals of Kentucky |
| Decision Date | 14 November 1919 |
| Parties | Louisville & Nashville R. Co. v. Smith's Admr. |
Appeal from Letcher Circuit Court.
MORGAN & HARVIE, MORGAN & NUCKOLS, SAMUEL M. WILSON and BENJAMIN D. WARFIELD for appellant.
T. W. WYLIE and W. G. DEARING for appellee.
Appellee's intestate, J. F. Smith, was run over and killed by a train of the appellant, and in this suit to recover damages for his death there was a verdict against the appellant for $5,000.00. The accident happened about 8 o'clock on the evening of October 25, 1916. The train was a local freight and was on its way from McRoberts to Neon. It consisted of one box car, a caboose, four cars, the tender and the engine, in the order named, and at the time of the accident was backing, in a northerly direction, the first box car being the front of the train. There was no Y or turntable at McRoberts, and it was customary for this train to proceed to Neon where the engine was reversed on the Y. Between McRoberts, a town of approximately 2,500 inhabitants, and Neon, with 150 inhabitants, is the town of Fleming, with a population of probably 1,500 or 2,000 persons.
The northern or western limits of McRoberts are co-incident with the southern or eastern limits of the town of Fleming. The accident occurred at a point about 30 feet from tipple No. 301 of the Elkhorn Coal Corporation, and within the limits of the town of Fleming, at a point approximately 400 feet from the last house in Fleming. There is a road crossing near the tipple. The public road parallels the tracks of the company for some distance at this place. In the use of this road and in going from one town to the other it is necessary to cross the creek some three or four times. The track is elevated from 6 to 8 feet above the level of the road and was in continuous daily use by from 75 to 200 persons traveling between the two towns, this use is spread over the entire day and as late as eleven o'clock at night.
Appellant insists it was entitled to a directed verdict. With this contention we cannot agree, though the weight of the testimony is in its favor.
Without undertaking to give a detailed statement of the evidence it might be summarized in part, as follows: For appellee: Decedent was a drinking man, and frequently got drunk; the sprees would last a week or ten days; he had them as often as once a month; when sober he was a good workman. As late as 7 or 7:30 the evening of the accident he was talking to one witness who said he appeared to be sober, he was standing erect and talked as he usually did. The train was seen by a number of persons backing from McRoberts. According to many of these there was no light on the front box car; two or three saw a white lantern on top of the car; some saw at least one man on top of the car; others saw a light on the caboose.
Decedent was last seen alive walking on the track when the box car was twenty or thirty yards from him. Other than the noise of the train heard by some of the witnesses there was no sounding of the bell or blowing of the whistle. The scene of the accident was on a curve near the tipple referred to.
For the appellant: The flagman and one brakeman were on the top of the front box car with lighted lanterns and were keeping a lookout ahead; before leaving McRoberts they had placed a yellow fuzee two or three feet above the draw-bar on the head end of the car. This fuzee will burn from ten to fifteen minutes; from the time they left McRoberts until they reached the point of accident was eight or ten minutes. The light from the fuzee enabled them to see from three to four rail lengths ahead of the car. The flagman said he did not see anything until the brakeman said: Just as he spoke the flagman says he flashed his eyes down expecting something to be on the track. He hadn't seen anything, but he caught a glimpse of something just as the car passed over a white looking something near the end of the ties. He could not distinguish what it was. He immediately gave the signal to the engineer and the train was stopped after the engine had passed beyond decedent about 100 feet.
The brakeman on the front car, in an affidavit, read as a deposition, testifies to facts substantially the same as the flagman; he saw decedent when the end of the car was about 30 feet from him; decedent was lying on the track, partly across one of the rails; he immediately called the flagman, who gave the signal to stop. The train was running from six to eight miles an hour down grade, and there was no exhaust from the engine. The train whistled for two crossings, one about one-half mile north of McRoberts and one north of the crossing south of the tipple. The bell was ringing and the fuzee was still burning after the train had stopped.
About two o'clock in the afternoon of the day of the accident decedent took a nap in the yard of a Mrs. Branham in McRoberts; he slept until sundown; he had a pint of whiskey in a quart bottle; this he consumed; he was seen in this yard by Mrs. Branham, her father and a schoolboy. After awakening from his slumber he started out of the yard and down the road "staggering and pitching along;" the last seen of him by two of these witnesses was when he came to a turn in the road, and disappeared from view.
To have authorized a peremptory instruction in appellant's favor it should appear that admitting the testimony introduced in appellee's behalf to be true, as well as every inference fairly deducible therefrom, he failed to support his cause of action. This is not the case as there was evidence sufficient to warrant a submission to the jury.
It is earnestly argued that decedent was a trespasser and the company owed him no duty of lookout or warning.
This court has had frequent occasion to pass upon cases involving facts similar to these, and the rule applicable here might be thus stated: That where the public generally, with the knowledge and acquiescence of the railroad company, have continuously used its tracks for a long period of time the presence of persons on the track at the point where it is so used must be anticipated by the company in the running of its cars or trains thereon, and it is the company's...
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