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

Decision Date20 June 1930
Citation30 S.W.2d 885,235 Ky. 211
PartiesLOUISVILLE & N. R. CO. v. SNOW'S ADM'R.
CourtKentucky Court of Appeals

Rehearing Denied Sept. 23, 1930.

Appeal from Circuit Court, Franklin County.

Action by Clarence Snow's administrator against the Louisville &amp Nashville Railroad Co. From a judgment for plaintiff defendant appeals.

Affirmed.

Hunt &amp Bush and B. L. Kessinger, all of Lexington, and Morris & Jones, of Frankfort, for appellant.

Leslie W. Morris and Marion Rider, both of Frankfort, for appellee.

REES J.

This appeal is prosecuted to reverse a judgment for $10,000 recovered against the appellant, Louisville & Nashville Railroad Company, the defendant below, by L. L. Snow, administrator of the estate of Clarence Snow, deceased.

Clarence Snow was run over and killed by a freight train upon the Kentucky river bridge of defendant at Frankfort about 10 o'clock p. m. on February 2, 1929. His administrator sued for his death, and in his petition alleged that a footway provided over the bridge for pedestrians by defendant was out of repair and dangerous, and because thereof Snow was killed. In an amended petition he alleged that, prior to the year 1869, the Louisville, Cincinnati & Lexington Railroad Company constructed the bridge mentioned in the petition over the Kentucky river in the city of Frankfort, and in August, 1869, entered into a written contract with the city of Frankfort and Franklin county whereby it gave to the city and county the privilege of constructing a floor with protecting side rails thereon on its railroad bridge over the Kentucky river at Frankfort, so that the bridge could be used by vehicles and pedestrians; and the city and county were granted the right to operate the bridge as a toll bridge and to collect tolls from the public using it, such tolls not to be in excess of the tolls allowable under the railroad company's charter.

The contract further provided that the Louisville, Cincinnati & Lexington Railroad Company should have the right to terminate the contract at any time by paying to the city of Frankfort and the county of Franklin the amount expended by them in flooring the bridge. It was further alleged that shortly after the execution of this contract the city and county constructed a floor in the bridge, and set aside and established a part of the floor for vehicular traffic and a part as a walkway for pedestrians, and operated the bridge as a toll bridge until June 26, 1882, charging toll, however, only to those of the public who crossed the bridge in vehicles; that the Louisville & Nashville Railroad Company, having acquired the right of the Louisville, Cincinnati & Lexington Railroad Company, exercised the right reserved in the contract to terminate it, and on June 26, 1882, took over and assumed the control and operation of the bridge, after paying the city of Frankfort and the county of Franklin for their interest therein as provided in the contract. It was further alleged that from that date the Louisville & Nashville Railroad Company continuously operated the bridge as a toll bridge, and that, in connection with its operation of the same as a toll bridge, it set aside and dedicated to public use a walkway for foot passengers over the bridge as well as a way for vehicular traffic.

The driveway occupied the space between the steel girders and the corresponding space over the eastern approach to the bridge. The footway was constructed outside the steel girders and along the north side of the eastern approach to the bridge. East of the steel girders a guard rail consisting of timbers about 6 by 8 inches was placed between the driveway and the footway. Along the north side of the footway, which was on the downriver side of the bridge, was a handrail. From the north rail of the railroad track in the driveway to the guard rail was 3.65 feet and from the guard rail to the handrail along the north side of the bridge was 2.2 feet.

In 1928 the railroad company began the construction of a new bridge immediately south of, and parallel to, the old bridge. In August, 1928, the old bridge was closed to all traffic except trains for the installation of machinery and equipment necessary for the construction of a new pier in the Kentucky river. About 100 feet of flooring between the steel girders and the east end of the bridge was removed. A corresponding portion of the guard rail, which separated the driveway and footway, was also removed. After a few days the flooring was restored, but the portion of the guard rail that had been removed was not replaced, and, as a result, the end of the remaining section of the guard rail, extending several inches above the floor, was left exposed at a point about 48 feet east of the steel girders. There was an iron bolt through the exposed end of the guard rail which extended slightly above the rail. Vehicular traffic was not again permitted to use the portion of the bridge that had been set aside as a driveway, but, as soon as the flooring was replaced, pedestrians, without objection from the railroad company, began using the footway just as they had used it theretofore, and continued so to use it until the accident to Snow in February, 1929.

A large number of people live on the west side of the Kentucky river in what is known as Belle Point, which is within the corporate limits of Frankfort, and the record discloses that from 300 to 600 persons used the footway in question daily. Appellee's intestate lived in Belle Point, and at the time of his death was employed at his father's grocery store in Frankfort on the east side of the river. About 9:30 o'clock on the night of the accident he left his father's store and started to his home in Belle Point; his route leading over the bridge. With him was his fourteen year old son. At the east end of the bridge Snow met J. W. Poe, and a short conversation took place, after which Snow started west across the bridge. Poe was the last witness who saw him alive. About this time an east-bound freight train reached the west end of the bridge. While the train was on the bridge and in motion, employees of the railroad company at each end of the bridge were attracted by the outcry of the boy. After the freight train had passed over the bridge, they found Snow's mutilated body scattered along the track. Bloodstains were found along the track near the exposed end of the above-described guard rail and extending some distance east. An examination of the train at a station a few miles east of Frankfort disclosed blood on the front truck of the eighteenth car back of the engine and upon the wheels of other cars toward the rear of the train. No blood was found upon the engine or any of the trucks of the first seventeen cars. No one saw the accident, except Snow's son, who was not permitted to testify.

It is appellee's contention that the evidence supports his theory that his intestate stumbled over the exposed end of the guard rail and fell under the train. On the other hand, it is contended by appellant that such a theory is speculative, is not sustained by the evidence, and that no one knows the cause of the accident, if it was an accident.

Appellant insists that the judgment should be reversed for the following reasons:

(1) Plaintiff's petition, as amended, does not state a cause of action, and defendant's demurrer thereto should have been sustained.

(2) Defendant's motion for a peremptory instruction should have been sustained upon three grounds: (a) Decedent was a trespasser, or, at most, a licensee upon defendant's bridge, and defendant violated no duty to him; (b) the evidence does not show decedent's death to have been caused by the obstacle complained of, to wit, the exposed end of the guard rail; and (c) decedent knew the condition of the bridge, assumed all risk, and was guilty of contributory negligence.

(3) Incompetent and prejudicial evidence was admitted over defendant's objection.

(4) Instruction No. 1, given over defendant's objection, was erroneous.

The first ground is based on the theory that the petition as amended shows that Snow was a trespasser, or, at most, a mere licensee, to whom appellant owed no duty except not to injure him by any positive or affirmative act of negligence, and not to expose him to any suddenly created and unexpected danger.

Under subdivision (a) of ground 2 it is insisted that the evidence shows that Snow was either a trespasser or a licensee. Counsel for appellant in their brief have argued these two grounds together, and consequently we will consider them together in this opinion.

If Snow was a trespasser, his administrator cannot recover for his death because the appellant owed him no duty except to exercise ordinary care with all the means at its command to prevent injury to him after his peril was discovered. L & N. Railroad Co. v. Dooley's Adm'r, 220 Ky. 67, 294 S.W. 810; Howard v. I. C. Railway Co., 189 Ky. 60, 224 S.W. 635. If he was a bare licensee, he took the premises as he found them, and his administrator cannot recover because of the unsafe condition of the footway, since the appellant owed him no duty except to refrain from any positive act of negligence that suddenly created a hazard to him without reasonable notice to him of the changed conditions. Shaver's Adm'r v. Louisville Gas & Electric Co., 207 Ky. 180, 268 S.W. 1082; Sage's Adm'r v. Creech Coal Company, 194 Ky. 415, 240 S.W. 42; Rabe v. C. & O. R. R. Co., 190 Ky. 255, 227 S.W. 166, 16 A.L.R. 1052; Bales v. L. & N. Railroad Company, 179 Ky. 207, 200 S.W. 471. Clearly the deceased was not a trespasser. It is argued that appellant abandoned the use of the bridge both as a toll bridge and as a passway for pedestrians in August, 1928, and closed it to public travel, and that persons who thereafter...

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