Louisville & N.R. Co. v. Jackson

• Decision Date: 16 May 1941
• Citation: 286 Ky. 595
• Parties: Louisville & N.R. Co. v. Jackson.
• Court: United States State Supreme Court — District of Kentucky

286 Ky. 595

Louisville & N.R. Co. v. Jackson.

Court of Appeals of Kentucky.

May 16, 1941.

1. Railroads. — Evidence that 50 to 100 persons daily used path on which pedestrian was struck by train and other paths nearby was insufficient to cast upon railroad duty of maintaining a lookout, signaling the approach of trains, or slackening their speed.

2. Railroads. — Even if path on which pedestrian was struck by train

was used by such a number of persons that railroad was under duty of maintaining a lookout, signaling approach of trains or slackening their speed, and railroad's trainmen had failed to observe duties which were thereby cast upon them, railroad would not be liable for death of pedestrian unless trainmen's negligence was proximate cause of pedestrian's injuries

3. Railroads. — Where negligence of railroad's employees is shown, question whether person injured when struck by train was guilty of negligence but for which the injuries would not have been sustained, is ordinarily for jury.

4. Railroads. — Evidence that pedestrian stepped in front of an approaching train which she might have observed had she looked before placing herself in a position of peril, and that point at which she stepped upon track was so close to approaching train that it would have been impossible for those in charge of it to avoid striking her, established as matter of law that "proximate cause" of injuries received by pedestrian was her own negligence, which barred recovery for pedestrian's death, irrespective of any omission or failure of duty on part of trainmen.

5. Railroads. — In action for death of pedestrian when struck by train, where there was no evidence indicating that trainmen discovered or could have discovered pedestrian's peril in time to have avoided striking her, no recovery for pedestrian's death could be had under "last clear chance" doctrine.

Appeal from Knox Circuit Court.

J.J. Tye, H.L. Bryant, J. Miller White and H.T. Lively for appellant.

C.R. Luker and J. Milton Luker for appellee.

Before Flem D. Sampson, Judge.

OPINION OF THE COURT BY JUDGE TILFORD.

Reversing.

This is an appeal from a judgment awarding the appellee administrator $1,000 damages for the death of his decedent who was killed on March 26, 1938, by a train while crossing appellant's tracks near the post office at Cannon, Kentucky. Several grounds for reversal are urged, including the refusal of the Court to peremptorily instruct the jury to find a verdict for the appellant. Among the assertions advanced by appellant in support of its contention that it was entitled to a directed verdict, either at the conclusion of the plaintiff's testimony or at the conclusion of all of the testimony, were: (1) That decedent was a trespasser whose peril was not discovered by the trainmen in time to have avoided injuring her; and (2) that she was guilty of contributory negligence as a matter of law. A determination of the questions thus raised necessitates a recitation of the testimony.

For several days prior to the fatal accident, the decedent, a woman fifty years of age, and, so far as the record discloses, in full possession of her faculties, had been visiting her daughter, Mrs. Disney, whose residence was on the west side of the right of way extending north and south from Cannon, a flag station, to Manchester. From the residence and crossing the right of way was a footpath leading to a spring on the edge of the right of way. From the spring, the pathway led to a barn situated a short distance southeast of the spring, and branching off from the pathway before it reached the barn, was another pathway leading southwestwardly a short distance to the post office. From there, the path led back across the tracks to a store. In the immediate vicinity there were four or five residences, including that of Mrs. Disney which was situated approximately a quarter of a mile south of the depot. About 7:30 o'clock in the morning, Mrs. Disney and a neighbor, Mrs. Gregory, both of whom were introduced as witnesses by the appellee, were standing near the barn almost opposite and across the tracks from Mrs. Disney's residence. Mrs. Disney testified that she saw her mother coming down the pathway from the residence with a bucket, apparently on her way to the spring. Mrs. Disney saw the train approaching, and believing that it would hit her mother if she attempted to cross in front of it, threw up her hand and "hollered" just as her mother stepped up on the track. Asked if she knew where the train stopped with reference to the place where it had struck her mother, she answered, "No, I couldn't she was running in front of it, and after I saw she was going to get hit I turned my head." Asked if her mother knew that the train was coming, she said:

"No, sir, I don't believe she did know it was coming when she stepped up on the track, I could see her, I was on the hill, and I could see the train coming."

Mrs. Gregory, the only other eyewitness to the accident, when asked to tell what she saw, said:

"I saw her get half way from the house to the railroad, and she come up onto the railroad, and she heard the train and turned and run on up the railroad, toward Manchester and run in front of the train, she had stepped on two or three ties when it hit her.

"Q. If I understand you she had stepped on to the railroad and had taken two or three steps when the train hit her? A. Yes, sir.

"Q. Did the train blow the whistle? A. Yes, sir.

"Q. Did it blow the whistle for the station? A. Yes, sir."

We quote the following from her cross-examination:

"Q. Where was Mrs. Jackson at the time Mrs. Disney hollow at her? A. Going up the little path onto the railroad, and she said `mother is going to get killed,' and she hollowed at her.

"Q. Did Mrs. Disney hollow at her mother before she got on the track? A. Yes, sir.

"Q. How was Mrs. Jackson traveling when you saw her. A. She was running.

"Q. Seem to be running fast? A. Yes, sir.

"Q. Did she ever check her speed? A. No,...