Louisville & I.R. Co. v. Kirk

• Citation: 175 Ky. 588,194 S.W. 925
• Parties: LOUISVILLE & I. R. CO. v. KIRK.
• Decision Date: 11 May 1917
• Court: Kentucky Court of Appeals

194 S.W. 925

175 Ky. 588

LOUISVILLE & I. R. CO. v. KIRK.

Court of Appeals of Kentucky.

May 11, 1917

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by James Kirk, administrator of the estate of C. R. Kirk deceased, against the Louisville & Interurban Railroad Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

Alfred Selligman, Frank P. Straus, Howard B. Lee, Huston Quin, and Alfred Krieger, all of Louisville, for appellant.

Robert L. Page and Edwards, Ogden & Peak, all of Louisville, for appellee.

HURT J.

This was an action by the administrator of C. R. Kirk, deceased to recover damages for his death, caused, as it was alleged by the negligence of the servants of the appellant in the operation of one of its cars. The car ran over the deceased near Bethany Church, on the line of appellant's road between Louisville and Orell. The cars upon appellant's road are propelled by electricity, and its contact with the decedent, who was a lad 16 years of age, resulted in his instant death. At the conclusion of the evidence offered by appellee and at the conclusion of all the evidence the appellant moved the court to peremptorily direct a verdict in its favor, which motion the court overruled in each instance. The trial resulted in a verdict and judgment in favor of appellee for the sum of $1,000, and, its motion for a new trial having been overruled, it has appealed. The only ground upon which it is insisted that a reversal of the judgment ought to be had is the alleged error of the trial court in overruling appellant's motion for a directed verdict, and the appellant in its brief specifically waives every other error, if there are any such.

The negligence relied upon by the appellee as his cause of action consists, as alleged, in the servants of appellant operating its car at a reckless rate of speed and failing to have it under control, and failing to maintain a lookout as it approached the place, where it came in contact with deceased, and in failing to give any warning of its approach. The evidence discloses that the place where and the circumstances under which the deceased was killed are substantially as follows:

On appellant's road is a station called Bethany, which stands on the west side of the tracks, just at the corner of Bethany Church lot, and just at the point where a public highway crosses the railroad, the highway running from the east to the west. Upon the east side of the railroad tracks, at this point, and running parallel with the railroad right of way and only a few feet from the railroad tracks, is a public highway, along which a turnpike is maintained. The lot upon which Bethany Church stands is on the west side of the tracks, and joins and abuts upon the right of way immediately from the station to about 90 to 100 feet toward the south. The tracks are only a few feet from the line of the lot upon which the church stands. There is no fence, ditch, nor other obstruction of any kind between the turnpike and the tracks of the railroad, nor between them and the lot upon which the church stands, and persons passing from the pike to the church pass over the tracks at grade. Just at the south line of the lot a private crossing passes over the tracks into a farm, which lies along the south line of the church lot. The deceased was killed about 10 o'clock p. m. on the 1st day of August. On that evening a picnic or church social was in progress on the lot of the church, at which from 200 to 300 men, women, and children were congregated. The crowd was mostly congregated between the church building and the tracks of the railroad, but, the lot being small, the crowd overflowed onto the tracks of the railroad and to the pike, and children were playing over the grounds, and back and forth and up and down, across, and alone the railroad tracks. A phonograph was being operated upon the church lot at the side of the right of way and immediately against the right of way. Carriages drawn by horses and automobiles were scattered along the right of way on the side next to the turnpike, and extended from the station down to a point beyond where the decedent was struck by the car. The appellant's car, with one Kelly as motorman, made a trip every two hours over the road and passed the church and station, while the crowd was there and before the death of the deceased. The car passed going toward Orell, just about 10 o'clock, and returned in about 10 minutes, and as it approached the crowd and station the deceased was run over upon the tracks and killed at a point about 45 feet south of the line of the church lot in the direction of Orell. The car was stopped at about 45 feet from the place of its contact with deceased, when his body was removed from underneath the car. The deceased, who a very few minutes before had been at the station, apparently in a sober but sleepy condition, had apparently for some reason been overcome with sleep or sudden sickness and was lying down between the tracks of the railroad. No one saw him go to that place, but a witness testifies to having seen him there just as the car approached, and the motorman testifies that he was lying upon the track and about 10 feet in front of the car when he first saw him. As to whether he was asleep or overcome by sudden sickness or what was the cause of his having laid down upon the track is not known. The evidence was very conflicting as to whether any signal of the car's approach was given. A considerable number of persons were at that time standing at the station about 150 feet from where the car struck the decedent, and a majority of the witnesses, some of whom stated that they were observing the approach of the car, testify that the whistle was not blown nor the bell rung, while others, including the motorman, testify that the whistle was blown several times as the car approached in the direction of the station. Some of the witnesses stated that the car was being run "very fast," while the carmen represented that it was moving at about 12 miles an hour. The headlight of the car was its usual brilliancy, and witnesses testified that a small object could be seen upon the track in front of the car from 200 to 300 feet by one observing the tracks from the motorman's position upon the car. The motorman testified that he was looking directly in front of the car along the track, but did not see the deceased upon the track until the car was within 10 feet of his body; that deceased was lying between the tracks, and he (the motorman) immediately resorted to the emergency brake and did everything he could to save the deceased. The motorman accounted for his failure to see deceased by stating that there were trees near the tracks which cast shadows over them, and that weeds were growing between the tracks, which would have a tendency to secure the body of the deceased from his sight. Photographs of the place of the accident and of the surrounding grounds and the railroad track were put in evidence. Other witnesses testified that the motorman, as the car approached, was not keeping a lookout in front of the car, but had his face turned to the side and was engaged in conversation with some one upon the car.

It is very clear that if it was not the duty of the ones operating the car to maintain a lookout, to approach at a reasonable rate of speed, and to give warnings of the approach of the car, that the negligence of the deceased, in being upon the tracks of the railroad, was the entire cause of his death, and that appellant cannot be held responsible for it, unless the motorman, after having seen the peril of the deceased, failed to exercise ordinary care to prevent injury to him.

If it was the duty of appellant's servant's to maintain a lookout at such place, to give warnings of the approach of the car and to approach with the car under control, and they failed in any of these duties, and but for such failure the deceased would not have been killed, then the appellant is culpable.

Although the deceased failed to exercise ordinary care for his own safety in keeping out of the way of the car, and was negligent in failing to do so, yet if it was the duty of the motorman to keep a lookout for persons upon the tracks at that place, and to approach with the car moving at a reasonable rate of speed and to give warning of the approach, and could have seen the presence of the deceased upon the tracks at the place where he was, by maintaining a lookout, and could have then stopped the car before running over him, and failed to know of his presence on the tracks by failing to maintain a lookout, and such failure was thereby the proximate cause of the death of deceased, it was a question for the jury to determine from the evidence whether or not the lookout duties were performed, and whether the failure was the cause of the injury, although there was evidence which tended to prove to the contrary.

The contention of appellant is that the deceased was a trespasser upon its road, and that it owed him no duty, except to exercise ordinary care to avoid injury to him after the motorman saw his peril, and that there was no evidence which tended to prove that the motorman knew of the decedent's peril until it was impossible, by the exercise of ordinary care, to avoid killing him, and hence a peremptory instruction should have been given directing the jury to find for it.

Thus the question is presented whether, at the time and place of the killing of deceased, it was the duty of the motorman to maintain a lookout for persons upon the track or so near thereto as to be in danger of being struck by the car, to operate the car at a reasonable rate of speed, so as to have it under control, and to...