Louisville & N.R. Co. v. Spence's Adm'r

• Decision Date: 04 March 1955
• Citation: 282 S.W.2d 826
• Parties: LOUISVILLE & NASHVILLE RAILROAD Co., Appellant, v. Ronnie Dean SPENCE'S ADM'R (Charles Spence), Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 826

282 S.W.2d 826

LOUISVILLE & NASHVILLE RAILROAD Co., Appellant, v. Ronnie Dean SPENCE'S ADM'R (Charles Spence), Appellee.

Court of Appeals of Kentucky.

March 4, 1955.

As Modified on Denial of Rehearing Oct. 28, 1955.

C. S. Landrum, C. E. Rice, Jr., Lexington, Stephen Combs, Jr., Whitesburg, for appellant.

Hinton & Young Pikeville, Emmett G. Fields, Whitesburg, for appellee.

STANLEY, Commissioner.

The record is of the tragic death of a ten year old boy, Ronnie Spence. He and his brother, Billy, twelve years old, and two other lads, Bobby and Andy Ferrell, about the same ages, played hookey from school one afternoon in September, 1952, in order to avoid hypodermic injections of health serum. They walked some distance and hid in the bushes at a place, they said, where they would not be seen and waited for the train. After the locomotive and some cars had passed the point and stopped, the four boys got on the train inside a car and stooped down so they could not be seen. The train consisted of 48 empty coal cars. It backed up a spur track to a mine tipple. It appears the boys stayed inside the car until the train went by the schoolhouse, which was about two miles from the place they boarded it. Then they began jumping off and on the slowly moving train. With reckless abandon that it is hard for an adult to conceive, Ronnie Spence got between two cars and, holding onto the one in front of him, began to walk the rail as the train moved along. When he had gone a few feet, he stumbled or slipped and fell beneath the train. One of his companions called to him to lie flat and he did so momentarily but turned over and the wheels ran over him.

The administrator of the child's estate has recovered a judgment of $15,225 against the appellant, Louisville & Nashville Railroad Company, for his death and burial expenses.

The defendant introduced no evidence. It rested the case on a tendered peremptory instruction based on the grounds that there was no proof of its negligence and that the boy was guilty of contributory negligence as a matter of law. The peremptory was denied and the case was submitted to the jury by an instruction which predicated liability of the railroad company on the condition that its employees in charge of the train knew that Ronnie or his playmates were 'riding on the train or jumping on and off the coal cars' and had failed to use ordinary care with the available means to avoid injuring the deceased boy and the other boys with him and such failure was the proximate cause of his death.

Evidence was admitted, over the defendant's objection, for the purpose of showing a custom of children to hop or ride coal trains on this spur track so as to convert their status of trespassers into that of licensees or invitees of a sort. The witnesses did not undertake to testify to anything that occurred on the day of the fatal accident.

In Durbin v. Louisville & N. R. Co., 310 Ky. 144, 219 S.W.2d 995, 997, we considered this character of evidence and held it to be irrelvant and incompetent, for 'a person may be an invitee today, a licensee tomorrow, and the next day a trespasser.' We expressed the view that even if there was such custom and the railroad employees knew of it, no additional duties were imposed on the company. But, accepting what was attempted to be proved as true, the court held that because of the absence of evidence that any of the crew knew of the presence or position of the boy who was injured on the train on the particular occasion, a directed verdict for the railroad company was proper. In the instant case the evidence adduced for the purpose of showing such custom and an implied permission for the deceased boy and his companions to ride the train, or of showing that their presence should have been anticipated and their danger should have been discovered, fell short of proving either permission or reasonable anticipation or discovery.

We look to the evidence tending to prove knowledge of the trainment of the presence of these four little boys on the train just before the fatal accident.

The testimony of the children as to the distance traveled before they emerged from inside the coal car is variable and unsubstantial. It seems to have been about the time the train passed their schoolhouse. They got off and began running along the track and jumping on and off the train 'next to the hill side', which was the east side of the track. The engineer was on the west side. How far the train had traveled while they were doing this is indefinite. One of them said it was 'about 100 feet' and then in answer to a question as to how many car lengths, said 'about 25.' Another boy testified it was 'about half a mile.' All agree they were on the outside of the curve in the track. The oldest of the three testified no one on the engine saw them hopping off and on the cars. Ronnie's brother, Billy, testified that when Ronnie was killed, they were about 10 or 12 car lengths from the engine but had been closer to it. He was asked by the court if he knew whether any of the train crew saw the boys hopping on and off the cars and answered that he could see one man with his head out of the engine window looking in his direction, but 'I don't know whether he saw me or not.' Bobby Ferrell testified Ronnie Spence could not have been seen by the engineer because of the curve at the place where he jumped off the train and because he had got between the cars. Andy Ferrell, in answer to a question whether the trainmen saw him, stated that none of them saw him get on but after he got on, 'I seen them looking at me.' It was not the engineer but the 'one toward the hill.' Upon cross-examination, however, it was developed that the boy was referring to the time the boys first got on the train some distance away from the scene of the accident. He testified that it was then that 'someone on the train saw us.' There was no interrogation seeking to develop the matter further.

After Ronnie Spence had fallen under the train, two of the boys got over on the other side, ran towards the engine, 8 or 9 car lengths, and called to the engineer and told him of the accident. He stopped the train and went to the place where the child's body lay. Some of the boys told the engineer they had not been on the train but had been walking along the side of the track. The...