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

• Decision Date: 08 June 1897
• Citation: 41 S.W. 269
• Parties: LOUISVILLE & N. R. CO. v. VITTITOE'S ADM'R.
• Court: Kentucky Court of Appeals

41 S.W. 269

LOUISVILLE & N. R. CO. v. VITTITOE'S ADM'R.

Court of Appeals of Kentucky.

June 8, 1897

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by Lloyd Vittitoe's administrator against the Louisville & Nashville Railroad Company to recover damages for death of plaintiff's intestate. Verdict and judgment for plaintiff, and defendant appeals. Reversed.

W. H Marriott, for appellant.

Hobson & O'Meara, for appellee.

PAYNTER J.

In July, 1894, Lloyd Vittitoe, an infant about 12 years of age was employed by Clarkson to keep cattle off of the appellant's track, which ran through an uninclosed field. A passenger train going north passed at 8:40 o'clock a m. The freight train going south, called "No. 9 Extra," passed about 9:20 o'clock a. m. The next train, known as "Passenger No. 5," going south passed at 9.50 a. m. The boy was seen in the field before and after the first train passed. As the latter train passed, he was found dead by the side of the track. If he was killed by a train, it must have been No. 9 extra. So far as this record discloses, no one saw the boy killed. Neither can it be determined how he was killed, except by the circumstances developed in the record. The proof tends to show that he had a greasy spot on the back of the coat which he wore at the place, where measurements would indicate that he might have been struck by some part of the engine or cars. He also had a gash in his head, but the skull was not fractured. This action was brought against the railroad company by his personal representative for the alleged negligent killing of the boy by the train on the road of defendant. There was a public road crossing some 35 feet from where the boy was found. There was testimony offered to show that men were working in a field some distance from the road crossing, and that they did not hear the train whistle. It was also shown that, for 900 yards from a point from which No. 9 would run to where the body was found, the track was open, and the boy could have been seen had he been on the track. In order to recover, it was essential that the plaintiff should show (1) that the boy was killed by the train of the defendant, and (2) that it was negligently done. It was just as important to show the latter as the former. Unless the killing was done by the negligence of the servants of the defendant in charge of the train, there is no legal liability on the company therefor. There is no proof that the boy was at the public crossing when struck by the train. All the testimony which tends to explain where the boy was that morning shows he was in the field attending to his duties. If he was upon the track of the defendant at any point in the field, he was a trespasser. This court has repeatedly held that the duty the railroad company owes one who is a trespasser upon its track is, if his peril is discovered, to use reasonable diligence to avoid injury to such trespasser. It is not the duty of those who are in charge of the train to keep a lookout for trespassers. We deem it unnecessary to elaborate this view because of the many adjudications of this court upon the subject. And it might be added that this rule has reference to trespassers at places not frequented by the public, either by right or permission, express or implied, by the company. Railroad Co. v. Gastineau's Adm'r, 83 Ky. 122; Railroad Co. v. Howard's Adm'r, 82 Ky. 217; Conley's Adm'r v. Railway Co., 89 Ky. 406, 12 S.W. 764; Brown's Adm'r v. Railroad Co. (Ky.) 30 S.W. 639; Shackleford's Adm'r v. Railroad Co., 84 Ky. 43; Railway Co. v. Powell (Ky.) 33 S.W. 629. The evidence for the plaintiff in this case does not show whether or not any bell was rung at the road crossing mentioned, and some of the witnesses who were in the field some distance from that point say they did not hear the whistle sounded. The law imposes a duty to blow the whistle or ring the bell on approaching a crossing,-not to give trespassers notice, but to give notice to the public, who have a right to enjoy the use of the crossing. If the boy was not on the crossing, the failure of the company to blow the whistle or ring the bell would not make them guilty of negligence as to the boy. As we said, there was some testimony tending to show that the point where the body was found could have been seen by the engineer from a point 900 yards on the road. This testimony, together with that we have indicated, is substantially that which was offered by the...