Louisville & N.R. Co. v. Lawson

• Decision Date: 13 November 1914
• Citation: 161 Ky. 39,170 S.W. 198
• Parties: LOUISVILLE & N. R. CO. v. LAWSON. [d1]
• Court: Kentucky Court of Appeals

170 S.W. 198

161 Ky. 39

LOUISVILLE & N. R. CO. v. LAWSON. ^[d1]

Court of Appeals of Kentucky.

November 13, 1914

Appeal from Circuit Court, Warren County.

Action by John W. Lawson against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Benjamin D. Warfield and Chas. H. Moorman, both of Louisville, and Sims & Rodes, of Bowling Green, for appellant.

Bradburn & Basham, of Bowling Green, for appellee.

CLAY C.

On November 19, 1912, John W. Lawson, Jr., a boy 15 years of age, and weighing about 100 pounds, was run over and injured by a train operated by the Louisville & Nashville Railroad Company. The large toe of his left foot and his right foot and ankle were crushed. Suing by his father as his next friend, he brought this action against the railroad company to recover damages. From a verdict and judgment in his favor for $5,500, the railroad company appeals.

The accident occurred just inside the limits of Smith's Grove, an incorporated town of about 800 inhabitants. Defendant's tracks run northeast and southwest through the town. Plaintiff resided with his father near what is known as "Lawson's Crossing," some distance north of the depot. There was testimony to the effect that a pathway along defendant's tracks north of its depot and up to the second crossing above was used by the residents of the town of Smith's Grove living in that section and by others who lived three miles north of Smith's Grove. There were about a half dozen houses in that section of the town near the railroad right of way, and these houses were on macadamized streets. There were sidewalks on these streets leading to the town. Briefly stated, plaintiff's account of the accident is as follows:

Late in the afternoon on the day of the injury his mother sent him out to look for his father, who was expected to return home with a wagon and team. He went upon defendant's right of way at the second crossing north of its depot. He then started south along the pathway on defendant's right of way. After walking south for some distance, he retraced his steps toward the crossing, where he entered the right of way. He was walking for the purpose of keeping warm. He then turned and started south for the second time. After he walked some distance, he saw a train approaching about 100 feet from him. About 6 feet from the track was a small ditch. As the train approached he moved to the edge of the ditch. While walking along the edge of the ditch, he was drawn under the train and engine. The train was going very fast. After receiving the injuries he called for help. A neighbor responded and took him to his home.

Mr Witherspoon, a resident of Smith's Grove, stated that he saw a freight train leave the station about the time the boy claims to have been injured, and this train was going very fast; in his opinion its speed was 25 or 30 miles an hour. Some railroad postal clerks and others testified that they had seen mail bags and packages of papers which had been thrown from the train drawn under the train. With the exception of one witness, they had never seen a live object drawn under the train. That witness stated that upon one occasion he saw a man on a railroad platform sucked under a train. He refused to say who it was. Other witnesses testified that there was no suction toward a train until the train itself had passed and the air rushed in to fill the vacuum made by the passing train. Defendant's witnesses testified that the speed of the train it is claimed struck plaintiff was not greater than 8 or 10 miles an hour. The train consisted of an engine and about 33 freight cars and it was impossible, within the short space lying between the depot where it was stopped and the place of the injury, to have gotten up its speed of 25 or 30 miles an hour. These witnesses all testified that they had never heard of any live object being sucked under a train. The engine of the train was examined at Rowletts, a station north of Smith's Grove, and there were no marks on it indicating that any one had been struck by it.

Briefly stated, plaintiff contends that the recovery in the lower court is proper for the following reasons: The evidence shows that defendant's right of way was used as a footpath by a large number of persons with the knowledge and acquiescence of the railroad company. The accident occurred in an incorporated town. Plaintiff, therefore, was not a trespasser, but a licensee. In approaching the place where plaintiff was injured, it was the duty of the defendant to keep a lookout and give timely warning of the approach of its trains, and to use ordinary care in the operation of its trains not to injure any one walking along its right of way. Plaintiff's case, however, is not based on a...