Louisville & N.R. Co. v. Petrey

• Decision Date: 09 December 1915
• Citation: 180 S.W. 370,167 Ky. 223
• Parties: LOUISVILLE & N. R. CO. v. PETREY.
• Court: Kentucky Court of Appeals

180 S.W. 370

167 Ky. 223

LOUISVILLE & N. R. CO. v. PETREY.

Court of Appeals of Kentucky.

December 9, 1915

Appeal from Circuit Court, Whitley County.

Action by J. T. Petrey against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Benjamin D. Warfield, of Louisville, and H. H. Tye, of Williamsburg for appellant.

Rose &amp Pope, of Williamsburg, for appellee.

CARROLL J.

The appellee, Petrey, while standing about eight feet from the track of the appellant company at a point about one-half mile from the station of Nott, was struck by a piece of ice pitched from the baggage car of a passing train by the baggageman. The force of the impact broke his leg, and in this suit to recover damages for the injuries so sustained there was a verdict and judgment in his behalf for $2,500 and the railroad company appeals.

The evidence shows that Petrey started to walk on the railroad track from Jellico to Nott, a distance of about two miles, and that to get out of the way of the approaching train he had stepped off of the track at the time he was hurt. On the trial of the case there was an effort on the part of Petrey to show by evidence that the track and right of way of the railroad company between Jellico and Nott was used by a sufficient number of persons to put upon the company the duty of anticipating their presence on the track and right of way, and the correlated duty of exercising such care not to injure them as is imposed at places where travelers on the tracks may be treated as licensees. But the trial court did not think the track and right of way was used by a sufficient number of persons to constitute Petrey a licensee, and in this conclusion we concur. The place where the accident occurred was out in the country some half a mile distant from the nearest railroad station, and although persons at this place used the track as they do everywhere, the record does not show that the locality or the use of the track by the public was sufficient to convert the users from trespassers into licensees.

Treating Petrey as a trespasser, the court instructed the jury that:

"If you believe from the evidence that the block of ice mentioned by the witnesses was thrown, pitched, or dropped from the baggage car of the defendant company by its baggageman or expressman while in the line of his employment, performing the duties required of him by the defendant company as such baggageman or expressman, and you further believe from the evidence that the said block of ice so pitched, dropped, or thrown struck the plaintiff, Petrey, and that the said baggageman or expressman knew of the presence of, or saw the position of, said Petrey in time to have avoided striking Petrey with the ice, and failed to do so, you will find for the plaintiff, Petrey."

This statement of the law has been approved by this court in L. & N. R. R. Co. v. Eaden, 122 Ky. 818, 93 S.W. 7, 29 Ky. Law Rep. 365, 6 L. R. A. (N. S.) 581. In that case Mrs. Eaden sued to recover damages for personal injuries caused by the act of the fireman on the engine of a passing train who, as she averred in her petition, "recklessly, negligently, and wantonly" threw a shovelful of burning cinders and ashes into her face, when she was standing at or near a private crossing, and at a time when the fireman knew of her presence at the place she was standing. In the course of the opinion the court said:

"It is too well settled to require argument that, if the employé of appellant knew of appellee's position on the right of way of the corporation, he was then bound to exercise at least ordinary care to avoid injuring her. It is immaterial, therefore, whether she stood at or near the crossing. In either case, if the employé knew of her danger, the corporation is liable. * * * Here, if appellee's testimony be true, the fireman was engaged in throwing out ashes and embers from the engine, thus discharging a duty he owed his employer, and if, while so doing, he recklessly and wantonly injured her, we see no reason for exempting the corporation from liability for the wrongful act of its employé."

In Willis v. Maysville R. R. Co., 119 Ky. 949, 85 S.W. 716, 27 Ky. Law Rep. 459, s. c. 122 Ky. 658, 92 S.W. 604, 29 Ky. Law Rep. 178, 13 Ann. Cas. 74, the suit was brought to recover damages for injuries inflicted by a lump of ice that was thrown from a passing train of the railroad company out in a street on which the injured party was standing near the railroad track. In the opinion the court said:

"The question here presented is, was the brakeman, in removing the ice from the caboose platform, acting in the performance of a duty arising from his employment, or the apparent scope thereof? If he was, and his act in ridding the train of the ice was so negligently performed as to result in injury to appellant, appellee would be liable therefor. It is usually a matter of some difficulty to determine what acts of an agent are or are not within the apparent scope of his agency of employment, for which reason courts generally hold that the question is one of fact, to be determined by a jury."

With the law of the case thus settled, the remaining question is Was there sufficient evidence to show that the person who pitched the lump of ice from the car was, at the time, acting in the scope of his duties as an employé of the railroad? Counsel for the railroad company insist: (1) That...