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

• Citation: 164 Ky. 23,174 S.W. 734
• Parties: LOUISVILLE & N. R. CO. v. WEISER'S ADM'R.
• Decision Date: 26 March 1915
• Court: Kentucky Court of Appeals

174 S.W. 734

164 Ky. 23

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

Court of Appeals of Kentucky.

March 26, 1915

Appeal from Circuit Court, Bullitt County.

Action by B. Weiser's Administrator against the Louisville &amp Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.

Benjamin D. Warfield and Chas. Carroll, both of Louisville, for appellant.

S. L Trusty, of Louisville, and C. P. Bradbury, of Shepherdsville for appellee.

TURNER J.

On one morning in August, 1913, appellee's intestate, Weiser and one Earl Roberts were carried on a freight train from Paris, Ky. to a point near Covington, where they departed therefrom. They remained around the locality for several hours, passing the time in swimming in the Licking river near by, and in sitting and lying upon the railroad tracks. Twice that morning, before the accident from which this suit results, they had been warned of approaching trains while they were sitting or lying upon the ties or track, and upon each occasion they barely escaped being run over. Finally, about 10:30 o'clock, while they were each asleep on the railroad track, or on the ends of the ties immediately next to the rails, a passenger train from Lexington, approaching from the south, which aroused Roberts but did not arouse Weiser, and while Roberts was attempting to arouse Weiser and to pull him off of the track, ran over and killed Weiser and injured Roberts. This is an action by Weiser's administrator seeking damages, and upon a trial in the lower court the plaintiff was awarded a verdict and judgment for $2,500, and this appeal is prosecuted and a reversal asked upon the sole ground that defendant was entitled to a peremptory instruction.

The evidence of Roberts is that when the approaching train was about 1,200 feet from the point where they were lying, the noise from it aroused him; that it was running at the rate of about 30 or 35 miles an hour, and that when the train was about 1,000 feet from them he waved his arm or gave some kind of signal to the engineer of the train, and that the engineer thereafter responded to that signal by leaning out of the cab window and making a motion of his hand and arm to them to get off of the track; that he continued to undertake to arouse Weiser or pull him from off the track, but was unable to arouse him, and was unable to pull him from the track because of the benumbed condition of his (Roberts') limbs by reason of having remained in swimming too long; that Weiser was at the time lying with his head and one arm on one of the rails of the track, and was instantly killed.

The engineer testified that he was running his train about 35 miles an hour; that when he was about 300 feet from where the men were he discovered something on the track which he at first thought might be an old coat, blanket, or comfort or something like that which had been thrown from some boarding or camp cars which were on the side track at that point, but that in a second or two he discovered that it was a human being, and that he immediately made every effort to stop his train by shutting off the power from the engine, using the emergency brakes and sanding the tracks, but that he was unable to stop it in time to avoid the collision; that he stopped his train some distance beyond and backed to where they were, and then for the first time he discovered that there had been two men instead of one on the track; that he had seen no signal from them, and had given them none.

Other witnesses, who were around the boarding cars at that point, stated that the two men had been around there for several hours, and a great part of that time had been sitting on the railroad track, and had twice that morning been warned of approaching trains while so sitting; that finally they both laid down on the track or ties, one with his head to the north and the other with his head to the south.

The inconceivable recklessness of these two men cannot be explained by anything in the record; their conduct in deliberately lying down and going to sleep on the railroad track over which they knew trains frequently ran, and when in the last hour or two they had twice been compelled to abandon the same position by passing trains and had barely escaped injury in each instance, is past understanding, and cannot be reconciled with any fact or suggestion that appears in the record. It is not shown that they were drunk or that they were under the influence of drugs, or that they were temporarily bereft of their minds.

It is putting it mildly to say that they were deliberate trespassers, and for that reason the company and its employés owed them no lookout duty, but only owed them the humane duty of taking precautions to protect them from injury after the discovery of their peril. Whether their peril was discovered in time to have avoided the collision must be determined from the evidence of...