Louisville & N.R. Co. v. Hyatt's Adm'x
| Decision Date | 25 March 1921 |
| Citation | 191 Ky. 85,229 S.W. 101 |
| Parties | LOUISVILLE & N. R. CO. v. HYATT'S ADM'X. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Laurel County.
Action by Davis Hyatt's administratrix against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed for further proceedings.
Benjamin D. Warfield, of Louisville, and H. J. Johnson and Geo. G Brock, both of London, for appellant.
Bruner & Begley, of London, C. R. Luker, L. P. Thompson, of London and Ray C. Lewis, for appellee.
August 5, 1917, Davis Hyatt, while employed by appellant as a member of a section crew, was killed by a train. His territory included the double track between Livingston on the north and East Bernstadt on the south. Between these two points trains south bound are compelled to climb a considerable hill, and so great is the grade that it has been the custom for many years to have a "helper"; that is, an engine to pull or push heavy trains over the hill. This helper is turned on the Y at East Bernstadt and returns to Livingston on the north-bound track. The helper makes several round trips each day. Between said stations is a decided curve hence the name of "crooked hill" has been given to it by the trainmen.
On the day above mentioned, and for some time prior thereto, Hyatt had been acting as a trackwalker between said stations; it being his duty to inspect the track, to see that it was in a proper state of repair, to keep a lookout for trains, to tighten any bolts that might be found loose, and take whatever steps might be necessary to keep the track in good shape. Hyatt is shown to have been an experienced trackwalker.
The length of the boiler made it impossible for an engineer going north on crooked hill to see the track ahead. About 8:20 on the morning in question a freight train had been helped over this hill on the south-bound track, and the helper was returning on the north-bound track. As it reached the hill it passed another freight train, south bound, pulling a large number of cars. Because of the curve and the passing south-bound train, the fireman of the helper could not see the track for any distance ahead. The engineer of the helper says that as he was rounding the curve on this trip he did not see Hyatt before his engine struck him, but he saw him before he hit the ground. He thought at first he was jumping off the train and did not know the difference until he stopped his engine, went back, and saw what had happened.
In this suit by his wife, as administratrix, damages were asked for his death. We are asked to reverse a judgment in her favor on several grounds. Appellant insists the jury should have been peremptorily instructed to find for it. Section men assume the risk of injury from approaching trains and must keep a lookout for their own safety. Generally speaking, those in charge of trains are under no duty to give such employés warning of the approach of trains. However, in unusual and exceptional cases, where it is or ought to be apparent to trainmen that a section hand is in danger and might be unconscious of that fact, it is their duty to warn him. Unless, therefore, this record presents such circumstances, a motion for a directed verdict should have prevailed.
In Blankenship's Adm'r v. N. & W. Ry. Co., 147 Ky. 260, 143 S.W. 995, we have a case presenting facts in many respects similar to those found in the instant case. Blankenship was a trackwalker, and had been assigned to a portion of the company's double track. He was doing some work on the track. This he stopped upon the approach of an east-bound train, stepping to the north track. While there looking at the passing train he was struck by a west-bound train and instantly killed. At the point of the accident the tracks curved sharply toward the southeast, so that the view of the enginemen upon the west-bound train was so obscured by the east-bound train that the engineer and fireman could not and did not see Blankenship until within 75 feet of him, and it was then impossible to stop the train in time to prevent the accident. The train which killed Blankenship was an extra train and was not running according to a printed schedule, but the court said it was not necessary to supply a trackwalker with the information as to the approach of trains for his own protection, as he works upon different parts of the track, and his ordinary faculties of sight and hearing are entirely sufficient and all that is usually required to protect him from the danger of moving trains. Further, the company was under no duty to give him notice of the approach of trains; in the nature of the case it would be unreasonable and impracticable to do so. The duty was imposed upon him to take such reasonable care of himself in the performance of his duty as would prevent him from being injured by a passing train, and, failing so to do, he was guilty of the grossest negligence, for which he could blame no one but himself.
L. & N. R. R. Co. v. Elmore's Adm'r, 180 Ky. 735, 203 S.W. 876, involved the liability of the company growing out of the death of a member of a section crew killed while returning to his home on a hand car after working hours. It was alleged the engine which struck Elmore was either not equipped with a headlight or it was burning very dimly, and also that the proper signals for a nearby crossing were not given. The accident happened late in the day, when it was practically dark. Referring to Cahill v. C., N. O. & T. P. Ry. Co., 92 Ky. 345, 18 S.W. 2, 13 Ky. Law Rep. 714, holding that one using a private crossing was entitled to the benefits of signals for a nearby public crossing, the court said this rule was applicable only to persons using a private crossing in passing over the railroad track, and that the doctrine had never been extended to any others, and that, since Elmore was not using or attempting to use the crossing at the time of his injury, the rule stated in the Cahill and similar cases did not apply. The court held that, since there was no duty to warn employés such as Elmore of the approach of trains, it followed they were not entitled to demand that signals of the approach be given nor to demand any other equipment which might warn them of the approach of trains, such as headlights on the engines, the court saying:
"What has been said is sufficient to show that those employed upon railroad tracks are required to take notice of and anticipate the running of trains,...
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