Louisville B. & T. Co. v. Brown, by, Etc.
| Decision Date | 10 November 1925 |
| Citation | 211 Ky. 176 |
| Parties | Louisville Bridge & Terminal Company, et al v. Brown, By, etc. |
| Court | Supreme Court of Kentucky |
1. Railroads — Negligence in Failing to Discover Boy's Presence on Track Held for Jury. — Whether 10 year old boy was injured while hopping off and on train, or through negligence of train operatives in failing to discover his presence on track, with foot caught between rails, held under evidence for jury.
2. Railroads — One Caught in Rails Not Trespasser. — Rule that one who sits or prostrates himself on railroad track, though it be at public crossing or place where persons are licensed to use track is in position of trespasser, has no application to one, who, being caught in rails, prostrates himself immediately before train to avoid being killed.
3. Appeal and Error — Permitting Jurors to Question Witnesses Held Not Prejudicial. — In action against railroad for personal injuries of boy caught in rails, permitting jurors to question witnesses to considerable extent held not prejudicial, though irrelevant and incompetent matter was admitted; there being no objection by counsel.
4. Witnesses — Jurors have no Right to Ask Witnesses Incompetent and Irrelevant Questions, and Objection thereto should be Sustained. — Jurors permitted to question witnesses have no right to ask an incompetent or irrelevant question, and objection of counsel to such a question should be sustained.
Appeal from Jefferson Circuit Court
MARVIN H. TAYLOR, WOODWARD, WARFIELD & DAWSON, HUMPHREY, CRAWFORD & MIDDLETON, EDWARD P. HUMPHREY and ROBT. P. HOBSON for appellant.
ROBERT G. WULF and KENDERICK R. LEWIS for appellee.
Affirming.
This appeal by the Bridge and Terminal Company seeks the reversal of a judgment for $6,500.00 against it and in favor of appellee Brown, an infant, by his statutory guardian, for the loss of a leg through the negligence, as it is charged, of the company in the operation of one of its trains along Fourteenth street, in Louisville. On the night of April 26, 1923, appellee Brown, a boy about ten years of age, with two companions, went to a carnival in Louisville, some distance from his home. Some time about ten o'clock they left the carnival to return home. On their way they came to the intersection of Broadway and Fourteenth street. The tracks of appellant company extended along Fourteenth street at this intersection, and the boys turned north on Fourteenth street, following the railroad tracks, although they were traveling along the walk on the west side of the street. About the time they reached Esquire street, which crosses Fourteenth, one of appellee's companions declared his intention to leave them and go home by another street and did so. About the same time appellee decided to cross the street and take a certain named route for home, and the other boy started with him. In crossing the street it was necessary to cross the tracks of appellant company; at that point there were two main tracks, one northbound and one southbound, and two switch tracks, one on the east side and one on the west side of the mains. There was no street light nearer than the intersection of Broadway, about 280 feet away, but there were two or three small switch lights about the point where appellee started to cross. In attempting to cross the tracks appellee stepped into the space between the rails at a switch point and his foot became hung, and he could not remove it; thereupon he called his companion, a boy about his age, to help him loosen his foot, and his companion attempted to pull his foot out of the switch but could not do so. About that time they observed the engine of a train approaching from the Broadway side and within about 280 feet of them; after making additional efforts to release the foot of appellee without success, appellee's companion, to avoid the oncoming train, ran to the sidewalk, and appellee to save his body from collision with the train had the presence of mind to lie down on the ground between the tracks with his foot still hung in the switch at a point where the wheels of the engine and cars would have to pass. The train ran over his foot and mashed it off. Later he was carried to the hospital where it was found necessary to take his leg off above his knee.
The theory of the appellant company, as we gather from its brief, is that appellee was not hurt in the way and manner claimed by him but that he with other boys were hopping on and off the train and that in some way, unexplained in the record, he met with the accident which cost him his foot. There is no evidence to support this theory, save that given by the trainmen in charge of the locomotive which cut off appellee's foot wherein they stated that they were keeping a diligent lookout ahead of the train for persons on the track and did not see or know of the presence of appellee at that point, if such evidence does in fact support that theory. On the other hand, appellee is supported in his evidence by his companion, Willie Muford, who related the circumstances about as stated by appellee, Brown. He is also corroborated in many of the facts by a railroad watchman at a nearby crossing and by several other persons. At any rate the controverted fact of when, where and how appelee, Brown, met with his accident was for the jury.
Appellant company insists that the trial court erred in overruling its motion for a peremptory instruction made at the conclusion of the testimony because, as argued by appellant, the rule is that where a person is lying down or sitting upon a track, the railroad company is not liable unless its employes in charge of the train actually saw his danger in time to avoid striking him, and in support of this contention cite and rely upon the cases of Davis, Director General v. Crawford, 203 Ky. 71-73; Lee's Admr. v. Hines, Director General, 202 Ky. 240; Bevin's Admr. v. C. & O., 190 Ky. 501.
The facts of the foregoing cases upon which appellants rely are very different from the ones we are now considering. In the Crawford case, supra, the accident happened about 5:10 in the afternoon of October 31st, at a time when it was almost dark. The engineer and fireman in charge of the train gave the only evidence concerning how the accident happened, the engineer saying that Crawford was first seen lying between the rails on the track when his attention was first directed to him by Crawford raising his head and looking towards the approaching train; that the train was only a very short distance from Crawford at the time the engineer discovered his presence upon the track; that Crawford was not upon a public crossing or a public street, and therefore was a trespasser. After stating the facts, we said:
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