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

• Decision Date: 28 March 1919
• Citation: 210 S.W. 938,183 Ky. 829
• Parties: LOUISVILLE & N. R. CO. v. VAUGHAN'S ADM'R.
• Court: Kentucky Court of Appeals

210 S.W. 938

183 Ky. 829

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

Court of Appeals of Kentucky.

March 28, 1919

Appeal from Circuit Court, Clark County.

Action by Clark Vaughan's Administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

B. D Warfield, of Louisville, B. R. Jouett, of Winchester, and Samule M. Wilson, of Lexington, for appellant.

Hays &amp Hays, of Winchester, and R. C. Musick, of Jackson, for appellee.

QUIN J.

This is an appeal from a judgment rendered in favor of the appellee appellee's decedent having been killed in the appellant's yard at South Jackson, October 31, 1915. Many points are urged by counsel to reverse the judgment of the lower court, and we will discuss such of these as we deem material upon this hearing.

The company's yards are situated just south of the town of Jackson, and between Jackson, a city of approximately 2,000 or 3,000 inhabitants, and Quicksand, a city of from 1,000 to 1,500 inhabitants, the cities being about three miles apart. There are some mines in the immediate neighborhood, and bordering on both sides of the company's tracks, leaving Jackson, are several residences and a number of houses belonging to the railroad company.

Decedent in company with three companions, while walking in the company's yard, was overtaken by an engine that was backing from the depot southwardly to the roundhouse, and he and two of his companions were killed, the fourth being injured. There is a wagon road also a plank walk paralleling the company's tracks for a considerable distance southwardly from the town limits. It appears from the evidence that neither of these ways were much used by pedestrians or vehicles. At a point approximately 295 feet north of the scene of accident is a street crossing. The engine referred to had, just a short time previous, reached Jackson, had parked its coaches, and was proceeding southwardly to the roundhouse, headlight facing north. The flagman of the train was on the rear of the tender, and had a white and a red lantern, but neither of these gave much light; he did not see the decedent in time to prevent the accident; he gave the signal for the engineer to stop at about the same time as an engineer on a passing train sounded the alarm.

The engine was stopped, but not until after it had run over the decedent.

It is urged by the appellant that its motion to strike from the petition and its demurrer to the petition should have been sustained, and also that it was entitled to a peremptory instruction; both theories being based on the fact that decedent was a trespasser, and therefore the company was under no duty to exercise ordinary or any care to discover his presence on the track.

In the earlier cases it was held that the railroad company's duty to maintain a lookout, give warnings, and have its trains under reasonable control was confined to cities, public crossings, and thickly populated communities, and did not extend to rural communities or sparsely settled localities, though the track at these latter places may have been used by a large number of persons. Shackelford v. L. & N. R. R. Co., 84 Ky. 43, 4 Am. St. Rep. 189; L. & N. R. R. Co. v. Vittitoe's Adm'r, 41 S.W. 269, 19 Ky. Law Rep. 612; Miller's Adm'r v. I. C. R. R. Co., 118 S.W. 348; Davis v. C. & O. Ry. Co., 116 Ky. 144, 75 S.W. 275, 25 Ky. Law Rep. 342; L. & H. R. R. Co. v. Redmon's Adm'x, 122 Ky. 385, 91 S.W. 722, 28 Ky. Law Rep. 1293; C. & O. V. Nipp's Adm'x, 125 Ky. 49, 100 S.W. 246, 30 Ky. Law Rep. 1131; C., N. O. & T. P. Ry. Co. v. Harrod's Adm'r, 132 Ky. 445, 115 S.W. 699; Helton's Adm'r v. C. & O. Ry. Co., 157 Ky. 380, 163 S.W. 224; L. & N. R. R. Co. v. Schuster, by, etc., 7 S. W. 874, 10 Ky. Law Rep. 65; Johnson v. L. & N. R. R. Co., 122 Ky. 487, 91 S.W. 707, 29 Ky. Law Rep. 36; Brown's Adm'r v. L. & N. R. R. Co., 97 Ky. 228, 30 S.W. 639, 17 Ky. Law Rep. 145; L. & N. R. R. Co. v. Lowe, 118 Ky. 260, 80 S.W. 768, 25 Ky. Law Rep. 2317, 65 L. R. A. 122.

This rule has been modified so that now the question whether a party who is injured is a trespasser or licensee must depend, not on the fact that the accident happened in a city, incorporated town, or on a public crossing, but on the number of persons using the tracks at the place of the accident. Shrader v. L. & N. R. R. Co., 114 S.W. 788; L. & N. R. R. Co. v. McNary, 128 Ky. 414, 108 S.W. 898, 32 Ky. Law Rep. 1266, 17 L. R. A. (N. S.) 224, 129 Am. St. Rep. 308; C. & O. Ry. Co. v. Warnock's Adm'r, 150 Ky. 75, 150 S.W. 29; Corder's Adm'r v. C., N. O. & T. P. Ry. Co. et al., 155 Ky. 536, 159 S.W. 1144; C., N. O. & T. P. Ry. Co. v. Blankenship, 157 Ky. 699, 163 S.W. 1123; C. & O. Ry. Co. v. Dawson's Adm'r, 159 Ky. 296, 167 S.W. 125; Willis' Adm'x v. L. & N. R. R. Co., 164 Ky. 124, 175 S.W. 18; C. & O. Ry. Co. v. Isaacs, 170 Ky. 190, 185 S.W. 816. Many other cases on both these propositions could be cited, but, in view of the fact that the accident complained of happened in the company's yards, we will direct our attention to a consideration of cases involving similar accidents, limiting the discussion to cases arising out of yard accidents. We will consider first the line of authorities relied upon by appellant, a few cases being used for illustration.

Kentucky Central R. R. Co. v. Gastineau's Adm'r, 83 Ky. 119. In this case decedent was treated as a trespasser, and there is nothing to show the extent of the use of the yards by the public, if any.

L. & N. R. R. Co. v. Bays' Adm'r, 142 Ky. 400, 134 S.W. 450, 34 L. R. A. (N. S.) 678. The court states there is no proof that the tracks were used by pedestrians to any considerable extent at the time of night the accident occurred.

Watson's Adm'r v. C. & O. Ry. Co., 170 Ky. 254, 185 S.W. 852. In this case it appears that the right of way was inclosed with wire fences on each side, at what is termed the "Harrison street crossing," and a cattle guard extends across both tracks of the railroad, and is connected at the ends by wings, extending to the fence on each side of the right of way, nor were there any houses on either side of the right of way fronting thereon. The number of persons using the track at the point of accident is not given in the opinion, the court stating:

"The inclosure of the right of way with fences and a cattle guard was all the railroad company could be expected to do to keep persons from using the tracks, and there was an entire absence of any necessity for traveling upon the tracks or any invitation to do so."

L. & N. R. R. Co. v. Redmon's Adm'x, 122 Ky. 385, 91 S.W. 722, is to the same effect, the tracks of the company being inclosed by fences on both sides, with a bridge at one end and a cattle guard at the other, the number of persons using the tracks not being disclosed.

McDermott, by, etc., v. Ky. Cent. R. R. Co., 93 Ky. 408, 20 S.W. 380. In this case the court says:

"And, although there was some testimony showing that persons occasionally passed from Vine street along or upon the track to the depot, it does not appear such passway was then being regularly used, or ever was used by license of the company, express or implied."

There was a sign in the vicinity of the place where appellant was injured, and he had several times been driven away; force being at one time used for that purpose.

Beginning with the case of I. C. R. R. Co. v. Murphy's Adm'r, 123 Ky. 787, 97 S.W. 729, 11 L. R. A. (N. S.) 352, and continuing through a long line of cases, the court has consistently held in cases presenting facts similar to the one at bar it is a question for the jury whether, in the use of the company's tracks, at the point of accident, a person injured is to be treated as a licensee or trespasser. The accident in the Murphy Case occurred in the company's switchyard in the town of Central City. The tracks had been used by the public for 15 years, or longer as a roadway for foot passengers, with the knowledge of the operators of the trains. The court says:

"The use is shown to have been so extensive, constant, and continued as to raise a presumption of knowledge by the company that it was so used."

We quote further from this opinion:

"If the railroad company knows that the public habitually uses its tracks and right of way in a populous community as a foot passway, so that it knows that at any moment people may be expected to be found thereon, such knowledge is treated as equivalent to seeing them there, and their presence must be taken into consideration by the train operatives in the movement of their trains. Such foot passengers may be in law only trespassers or licensees. They may, indeed, have no legal right to be there or to use the track; but the question comes back, if they are there, and known to be there, what then, is the company's duty as to running its trains? It is admitted that the company has the superior right--nay, maybe has the exclusive right--to the tracks, and that some way ought to be provided for keeping trespassers off them altogether. But the fact remains, the tracks are open, inviting for easy travel, are traveled constantly, and so known to be by the company. The difference between the cases in the country and those in thickly settled towns and cities is one of practical materiality. In the country there are occasional sporadic uses of the tracks by the foot passengers, but they are comparatively rare. To compel the railroad trains to creep along under full control, in anticipation of what probably would not occur, viz. the meeting or overtaking of a stray trespasser, would not be reasonable, because most likely wholly unnecessary. But in populous communities the probabilities are all the other way. The foot passengers, from long habit of use, which are...