Louisville & N.R. Co. v. Jones' Adm'R.

• Decision Date: 16 May 1944
• Citation: 297 Ky. 528
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & N.R. Co. v. Jones' Adm'r.

297 Ky. 528

Louisville & N.R. Co. v. Jones' Adm'r.

Court of Appeals of Kentucky.

May 16, 1944.

1. Railroads. — Railroad company owes no duty toward a trespasser on right of way until his peril is discovered.

2. Railroads. — Whether person injured while using railroad track

is a "trespasser" or "licensee" depends upon extent of the use and the nature of the surrounding territory, whether thickly or sparsely populated.

3. Railroads. — The use of railroad track at a particular point by fewer than 150 persons daily will not constitute the users "licensees" to whom operators of trains owe a lookout duty and the exercise of other precautionary measures for their safety.

4. Railroads. — Evidence as to general use for many years of a path across railroad near station shed in a small village and that railroad company had built and mintained steps over a fence and a bridge across ditch on right of way for use of pedestrians and had later cut fence and installed a gate was sufficient to take to jury question of whether pedestrian who was killed while crossing track on the path was a "licensee" or "trespasser."

5. Railroads. — Whether pedestrian was contributorily negligent in crossing track at a point where railroad company was under the duty of giving warning of approaching trains was for jury.

6. Trial — Instruction authorizing recovery of punitive damages for death of a pedestrian when struck by train was error, in absence of showing that conduct of those in charge of train was reckless, wilful, or malicious.

7. Trial. — An instruction authorizing award of punitive damages is warranted only where there is evidence tending to show that defendant acted maliciously, willfully, or with such gross negligence as to indicate wanton disregard of the rights of others.

8. Damages. — Punitive damages are recoverable only where defendant has acted wantonly, recklessly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations.

Appeal from Whitley Circuit Court.

H.T. Lively and Tye & Siler for appellant.

R.L. Pope, C.B. Upton and J.C. Bird for appellee.

Before Flem D. Sampson, Judge.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

About 1 p.m. on Saturday, November 21, 1942, Mrs. Armelda Jones was struck and killed by a southbound freight train of the Louisville & Nashville Railroad Company while attempting to cross the railroad company's main track in the unincorporated village of Saxton, Whitley county, Kentucky. Mrs. Jones was 87 years of age. Joe L. Jones, son of the decedent, qualified as administrator of her estate, and instituted an action in the Whitley circuit court to recover damages for her death. The jury returned a verdict for $2,000 in favor of the plaintiff, and from the judgment entered thereon this appeal is prosecuted.

There are three tracks at Saxton, the main track, a passing track and a switching track. The point at which the accident occurred is on a path or walkway across the railroad tracks, and the principal issue in the case was whether there had been such habitual use by the public of the tracks at that place with the knowledge and acquiescence of the company as to impose upon it the duty of maintaining a lookout, sounding a warning of the approach of trains, and using all appropriate means to avoid injuring persons upon the track where the path in question crossed. It is appellant's contention that the evidence failed to show such use of the path by the public as would convert the decedent from a trespasser into a licensee, and that the court erred in overruling its motion for a directed verdict in its favor. It is conceded that no warning signals for the crossing were given, and that none of the train crew saw the decedent until after she had been struck. If the decedent was a trespasser, the appellant, of course, owed her no duty until her peril was discovered. For many years the railroad company maintained a depot at Saxton with a ticket agent and telegraph operator, but the depot was abandoned and the building removed ten or twelve years before the accident and thereafter what is referred to in the record as a station shed was maintained for the use of the traveling public. The accident occurred within a few feet of this shed. Mrs. Jones lived west of the railroad tracks and about 150 feet from the station shed. There were four other dwellings near the Jones home west of the tracks. East of the railroad tracks and within a few hundred feet were two stores, a post office, and eight or ten dwellings. A well-defined path led to the stores and post office from a point directly across the railroad tracks from the station shed. U. S. highway 25 passes under the railroad through an underpass at a point about 200 feet north of the station shed, and a gravel road, which intersects highway 25 near the underpass, runs south toward Jellico, Tennessee, passing between the station shed and Mrs. Jones' home. The plaintiff introduced evidence to the effect that the occupants of the five houses at Saxton west of the station shed, others living along the gravel road south of Saxton, and many persons living in the country west of the village used the path across the tracks near the station shed when going to and from the stores and post office located on the east side of the tracks, a number of them making many trips a day. Persons living east of the tracks also used the path going to and from the station shed and a grist mill located on the west side of the tracks. Several witnesses living in the neighborhood gave estimates of the number of pedestrains crossing the tracks daily at the point where Mrs. Jones was struck. Some of them estimated the average number at 125 to 150. Manuel Jones, son of the decedent, estimated the number at 150 or 200 "on an ordinary day." Joe Jones, another son, estimated the number at 300 or 400. On one occasion he counted the number of pedestrians using the crossing during a 15 minute period, and 9 crossed from the east to the west side of the tracks and about half of them returned. Mrs. J.H. Bowman lived near the station shed. There were seven members of her family, and they used the crossing twelve or fifteen times...