Louisville & N.R. Co. v. Marlow

• Decision Date: 14 March 1916
• Citation: 169 Ky. 140,183 S.W. 470
• Parties: LOUISVILLE & N. R. CO. v. MARLOW.
• Court: Kentucky Court of Appeals

183 S.W. 470

169 Ky. 140

LOUISVILLE & N. R. CO. v. MARLOW.

Court of Appeals of Kentucky.

March 14, 1916

Appeal from Circuit Court, Laurel County.

Action by W. H. Marlow against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

George G. Brock, of London, and Benjamin D. Warfield, of Louisville for appellant.

C. C Williams, of Mt. Vernon, and H. J. Johnson, of London, for appellee.

THOMAS J.

The town of Pittsburg, in Laurel county, is a mining town, and extends along the railroad track of the appellant north and south for a considerable distance, the northern part of the town being known as Baxtertown, and just north of Baxtertown is another village known as East Bernstadt. About 350 yards north from the depot in Pittsburg is a public road crossing over the right of way and track of appellant. Between this public crossing and the depot there has existed for 25 years or more a pathway on the railroad right of way on the east side of the track and some 4 or 5 feet from the ends of the ties. This pathway has been used by the public generally as a walkway, as is conceded by appellant, for such a length of time and by a sufficient number of people as to impose the duty upon the railroad company in the operation of its trains to anticipate the presence of those using it and to exercise a corresponding degree of care in the operation of its trains to prevent injuring such persons by any of its trains passing over that portion of its track, if its location was on, or sufficiently near, the track so that persons using it might be struck by the moving trains.

On November 26, 1913, the appellee was traveling over this pathway going north, and when he was about 100 feet from the public road crossing, a freight train consisting of about 35 cars approached from the south, and as the tender to the engine was even with him he was struck and injured by a piece of iron pipe, which was hollow and about 2 inches in diameter and 8 or 9 feet long. His right leg was broken just above the ankle, and he sustained some other minor injuries. He brought this suit to recover damages for his injuries, alleging that the company negligently permitted the piece of pipe to swing out or be thrown from its train and strike him, or that same was purposely or negligently thrown from the train by some of the agents and servants in charge of it. The allegations of the petition were denied by the answer of the defendant, and in a second paragraph it pleaded contributory negligence which was denied by reply, and upon a trial there was a verdict in behalf of plaintiff in the sum of $2,000, which it sought to have set aside on this appeal.

In cities and towns or thickly populated communities, where the people generally have used the track of the railroad company for a considerable length of time, out of humane reasons and for a due regard for life and limb, the law raises a presumption that such use of the track is by acquiescence of the company, and imposes the duty upon it while using its tracks at that place in the operation of its trains to anticipate the presence of persons so using it, and to exercise a corresponding degree of care in approaching said place to keep a lookout to discover the presence of persons on the track then, and to exercise the same care in the control of the movement of its trains at such places, and to have them under reasonable control to prevent injury to any one so using the track at that place. L. & N. R. R. Co. v. Veach, 129 Ky. 775, 112 S.W. 869; Shelby v. C., N. O. & T. P. Ry. Co., 85 Ky. 224, 3 S.W. 157, 8 Ky. Law Rep. 928; Conley v. C., N. O. & T. P. Ry. Co., 89 Ky. 402, 12 S.W. 764, 11 Ky. Law Rep. 602; I. C. R. R. Co. v. Flaherty, 139 Ky. 147, 129 S.W. 558; L. & N. R. R. Co. v. McNary, 128 Ky. 408, 108 S.W. 898, 32 Ky. Law Rep. 1266, 17 L. R. A. (N. S.) 224, 129 Am. St. Rep. 308; I. C. R. R. Co. v. Murphy, 123 Ky. 787, 97 S.W. 729, 30 Ky. Law Rep. 93, 11 L. R. A. (N. S.) 352; Southern Railroad in Kentucky v. Sanders, 145 Ky. 679, 141 S.W. 77.

An examination of these cases will show that there is no effort made through the rule announced by them to convert the user of the track at such place from a trespasser into a rightful user or licensee. It is nowhere indicated in any of the cases that the public or any member of it by the character of use considered acquires any property right in and to the use of the track or right of way for a passway by way of easement or otherwise. On the contrary, it is the settled doctrine in this state that no such rights can be acquired through persistent and repeated wrongs. As is stated by this court in L. H. & St. L. R. R. Co. v. Woolfork, 99 S.W. 294, 30 Ky. Law Rep. 569, thus:

"These persons were trespassers, and, as a practical proposition, the railroad has no remedy against such trespassers. The public cannot acquire a right in the private property of a railroad by repeated wrongs. If this could be done, then the railroad's tracks, bridges, and trestles would be at the mercy of habitual wrongdoers, and the corporation largely deprived of its property rights for public use without the compensation provided by

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