Long Fork Railway Co. v. Martin

• Decision Date: 18 December 1925
• Citation: 212 Ky. 182
• Parties: Long Fork Railway Company v. Martin.
• Court: United States State Supreme Court — District of Kentucky

212 Ky. 182

Long Fork Railway Company v. Martin.

Court of Appeals of Kentucky.

Decided December 18, 1925.

Railroads — Person Injured Held Guilty of Gross Carelessness. — Intending passenger, who deliberately went on and started to walk down the track, when his hearing had told him a train was coming, held guilty of gross carelessness, and railroad was not liable.

Appeal from Floyd Circuit Court.

A.B. COMBS, B.F. COMBS and SMITH & COMBS for appellant.

C.B. WHEELER for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellant, whom we will refer to as the defendant, is seeking to reverse a judgment for $7,000.00 recovered against it by the appellee, whom we will refer to as the plaintiff. About 9 a.m. March 10, 1922, the plaintiff was struck and so injured by a locomotive belonging to defendant, that it was necessary that his right arm be amputated between the elbow and the shoulder. On that morning, he was waiting at Wheelright junction to board the train going to Martin. While the defendant usually stops its trains at this junction to receive passengers, and has provided a platform and small shed for their use, it does not have a station agent at the place. Plaintiff and several of those with him, had crossed the track from the station, and had been sitting on a pile of railroad rails, talking. They heard the train coming, and got up and started to cross the track. All of them succeeded in getting over in safety, except plaintiff. Plaintiff says that he knew the train was coming; his purpose in being at the station was to take passage upon it, but he contends that he did not hear it whistle for this station. However, he admits having heard it whistle, as he thinks, for Melvin, about a mile and a half away, and he insists that defendant was negligent in failing to whistle for this particular station, in running its train at an unreasonable rate of speed, and in not keeping a lookout. Defendant's engineer testified that the whistle was blown for the station; that he saw plaintiff and some one else standing talking, to the right of the track as he approached the station, and that when he was within sixty feet of them, they stepped upon the track. He says that he immediately set the brakes in emergency, and did everything he could to avoid injuring plaintiff, but was unable to do so.

In the case of L. & N.R.R. Co. v. Redmon's Admrs., 122 Ky. 385, 91 S.W. 722, 28 R. 1293, this court said:

"Though they saw deceased walking by the side of the track ahead of the train, they were not required to anticipate that he would put himself in danger by getting on the track in plain view and just ahead of the train. On the contrary, they had the right to assume that he knew the train...