Lee's Adm'r v. Hines

• Decision Date: 26 February 1924
• Citation: 259 S.W. 338,202 Ky. 240
• Parties: LEE'S ADM'R v. HINES, DIRECTOR GENERAL OF RAILROADS.
• Court: Kentucky Court of Appeals

259 S.W. 338

202 Ky. 240

LEE'S ADM'R v. HINES, DIRECTOR GENERAL OF RAILROADS.

Court of Appeals of Kentucky.

February 26, 1924

Appeal from Circuit Court, Bell County.

Action by H. Clay Rice, as administrator of the estate of William L Lee, deceased, against the Louisville & Nashville Railroad Company, in which Walker D. Hines, Director General of Railroads, was substituted as defendant. Judgment for defendant, and plaintiff appeals. Affirmed.

John Howard, of Middlesboro, for appellant.

Wm Low, of Pineville, and B. D. Warfield, of Louisville, for appellee.

SETTLE J.

This action was brought in the court below by the appellant, H Clay Rice, as administrator of the estate of William L. Lee, deceased, against the Louisville & Nashville Railroad Company, seeking the recovery of damages for the death of his intestate, an infant 15 months old, alleged in the petition to have been killed by one of its trains at Shamrock, a mining camp or village, in Bell county, this state, through the negligence of its servants in charge of the train. Later, and after the filing of an amended petition setting forth the necessity therefor, the action was dismissed as to the Louisville & Nashville Railroad Company, and Walker D. Hines, Director General of Railroads of the United States, substituted as defendant, who, upon being summoned, filed an answer specifically denying all the averments of negligence on the part of the railroad company's servants in charge of the train contained in the petition, and alleging that the parents of the deceased infant, William L. Lee, viz. Albert Lee and Theodosia Lee, as his only heirs at law, would take equally any recovery that might be had in the case, and that in the matter of the death of their infant son, "they were guilty of negligence which contributed to and brought about the injury and death of the said Wm. L. Lee, and that but for the negligence of the said parents of the said Wm. L. Lee he would not have been struck by said train or killed." By agreement of the parties the affirmative matter of the answer was controverted of record.

On the trial of the case the appellee, at the conclusion of the appellant's evidence, moved for an instruction peremptorily directing a verdict in his behalf. The trial court then overruled the motion, but, upon its being renewed at the conclusion of all the evidence, sustained it; and thereupon instructed the jury to return a verdict for the appellee, which was done as directed. The appellant filed a motion and grounds for a new trial. The motion was overruled and judgment entered in conformity with the verdict. That action of the trial court resulted in this appeal.

After the granting of the appeal Walker D. Hines was succeeded as Director General of Railroads by John Barton Payne, and, though an order seems to have been entered in this court substituting Payne in that capacity for Hines as a party to the appeal, the name of the latter still appears on its docket as the appellee.

The appellant seeks the reversal of the judgment of the trial court on the following grounds, viz.: Error committed, as alleged, by that court to the prejudice of his substantial rights: (1) In directing the jury, by an instruction to that effect, to return a verdict for the appellee; (2) in failing to properly instruct the jury. Obviously the action of the trial court first assigned as error involves the crucial question presented for decision on the appeal. For, if we should hold that action reversible error, it would go without saying that the failure of the court to submit the case to the jury under proper instructions, also complained of by the appellant, would likewise have to be declared reversible error. On the other hand, if we should hold that the action of the court in directing the jury to return a verdict for the appellee was not error, it would equally follow that its failure to submit the case to the jury would not, and could not be, declared error. So it is manifest that the decision of the question first presented will be decisive of the second.

As the record does not contain a plat or map of the scene of the accident, or the surrounding premises, only an approximately correct description thereof can here be given. But we gather from the pleadings and bill of evidence found in the record that Shamrock, the place where it occurred, is one of several mining camps or small unincorporated villages situated at intervals of a mile or two along the line of the Louisville & Nashville Railroad in Bell county, at each of which a coal mine is operated. The inhabitants of these villages are employees at the mines, and their families. At Shamrock there is a coal mine owned and operated by the Climax Coal Company, whose employees, with their families, occupy the dwelling houses of that village. There are about 12 houses, exclusive of the commissary or store of the coal company, and one other house and a school building; the commissary being situated at one end of the village, and the single house and schoolhouse across Stony creek at the other. The commissary and 12 dwelling houses are situated on one and the same side of the railroad track, half of the houses fronting the railroad track and the others immediately in the rear of those in front. Between the front row of houses and track is a wagon road, which also runs between the commissary and track, while across on the opposite side of the railroad track from the houses and commissary is a cornfield, between which and the track there is no roadway. The house in which the infant decedent and his parents were residing at the time of his death was the fifth in the row fronting the railroad track.

It also appears that the railroad track at Shamrock is a spur track running from the railroad company's main line, and trains entering upon it are operated with the tender in front instead of behind the engine. The train by which the infant decedent was killed, consisting of three passenger coaches, a baggage car, engine, and tender, was being operated in this manner when the accident occurred. At or about the point of the railroad track's entrance of the village there is a crossing where it is intersected by the wagon road previously described as lying between it and the dwelling houses and commissary. Near this crossing is a trestle, and below the trestle a sharp curve in the track, beyond which there is a considerable stretch of straight track, and a train going in on the track, after passing over the crossing and trestle, must run out of and below the curve, to bring in its engineer's or fireman's range of vision any part of the railroad track at, or contiguous to, the place where the infant decedent was killed.

The specific acts and omissions of duty alleged in the petition constituting the negligence on the part of the servants of the Lousville & Nashville Railroad Company complained of as causing the death of the appellant's intestate are that they "so negligently managed and operated said train that it was run against plaintiff's intestate, William Lee, knocking him against a telephone pole; and so bruised, crushed, maimed, and wounded him that he died the following day in a hospital in Middlesboro." * * * After then setting forth in the petition that at the place where the accident occurred the railroad track is used day and night as a walkway by the public with the knowledge and acquiescence of the railroad company, it was further alleged that the latter "by and through its agents and servants in charge of said train failed to give any alarm, either by ringing the bell of the engine, or by the whistle of same, to the plaintiff's intestate; and in thus failing and neglecting to give any alarm the engine struck the plaintiff's intestate, causing the injuries aforesaid from which he died the following day; * * * that if defendant company's agents and servants in charge of said train had given the proper alarm, or had the train under the proper control, it could have avoided the injury and consequent death of plaintiff's intestate."

It will be observed from a careful reading of the foregoing averments of the petition that none of them contains a charge of negligence arising out of any failure of the engineer or fireman to maintain a proper lookout from the train as it approached the place of the accident; or that the death of the infant decedent was caused by the negligence of either of them in failing, after discovering his presence on the track and consequent peril, to use ordinary care to prevent the train from striking him. The only negligence alleged was as to the manner of operating the train and failure to give the usual signals of its coming; and, obviously, the charge of a failure to give the train signals is but a specification of an element or feature of the negligence respecting the manner of operating the train, previously alleged.

The appellant's right of recovery is based on the theory that as the residents of Shamrock and adjacent mining camps, notwithstanding the existence of a bordering roadway extending through that village, have for many years and in great numbers, with the knowledge and acquiescence of the Louisville & Nashville Railroad Company and its train employees, made daily and habitual use of its railroad track, at and contiguous to the place where the infant decedent was killed, as a walkway, such state of case imposed upon those operating the train by which the infant decedent was killed the duty of anticipating the presence of persons on the track where so used, and to maintain a lookout, keep the train under control, and give the customary signals to warn them of its approach, none of which duties, it is argued, was performed.

The evidence in respect to the use of the railroad track by the...