Louisville & N.R. Co. v. Foust

• Decision Date: 24 June 1938
• Citation: 274 Ky. 435,118 S.W.2d 771
• Parties: LOUISVILLE & N. R. CO. v. FOUST.
• Court: Kentucky Court of Appeals

118 S.W.2d 771

274 Ky. 435

LOUISVILLE & N. R. CO. v. FOUST.

Court of Appeals of Kentucky

June 24, 1938

Appeal from Circuit Court, Perry County.

Action by Wesley Foust against the Louisville & Nashville Railroad Company for injuries sustained when struck by one of defendant's trains. From a judgment for plaintiff defendant appeals.

Reversed.

Ashby M. Warren and J. Miller White, both of Louisville, Craft &amp Stanfill, of Hazard, and C. S. Landrum, of Lexington, for appellant.

H. C Johnson and C. A. Noble, both of Hazard, for appellee.

PERRY Justice.

On the afternoon of February 16, 1935, the appellee, Wesley Foust was struck and seriously injured by one of appellant's trains as he was using its railway track, near the "Old Shepherd" railroad crossing, as a footpath when returning from the post office at Happy, some four hundred feet below, to his home, some half mile above it, at Defiance, Perry County, Kentucky.

Appellee filed suit in the Perry circuit court against the railroad company for damages for his injuries sustained in this collision accident, wherein he recovered judgment against it in the sum of $3,000. Seeking a reversal of this judgment, this appeal is prosecuted.

The plaintiff, Wesley Foust, by his petition alleged that his injuries were caused by the general gross negligence of appellant's agents and servants in so recklessly operating its train and engine as to run same into and against him, thereby breaking his leg and otherwise seriously injuring him; that he was thereby caused to be confined in the hospital for weeks, to incur hospital and physician's bills, to suffer loss of time, and was permanently disabled, for which he prayed judgment for damages in the sum of $15,000 and $500 for expenses incurred.

Appellant answered, traversing the alleged negligence and setting up the plaintiff's charged contributory negligence in bar of the action. By a further paragraph, it affirmatively pleaded that on April 5, 1935, it made a full and final settlement with the appellee of all claims for damages, suffered by reason of the injuries sustained by him, in consideration of the sum of $150 paid him as an accord and satisfaction thereof.

Plaintiff replied, denying that he was guilty of contributory negligence upon the occasion of his injury, and further charged that the pleaded settlement made with him was procured by the fraud of the appellant's claim agent, Davis, and asked that the $150, pleaded as paid him in settlement of his cause of action, be held for naught, except as a credit on the amount of damages he might be adjudged to recover.

By an amended reply, he alleged that he did not read the release or writing, pleaded as a compromise settlement of his claim for damages made by appellant with him, when he signed same (which he admitted), but that it was read to him by appellant's claim agent, who had then prepared it; that he did not read the whole of it to him, but, on the contrary, so read it as to mislead him, by concealing its real character, and to practice a fraud upon him, in that he relied upon Davis' having properly read the release; that had he known the true import and effect of the writing, as one providing for a release of his claim against appellant for his injuries sustained, he would not have signed it, but that he had signed it because he thought and believed that the writing, as it was read to him, only provided for a settlement of his claim for loss of time caused by his injuries sustained.

With his filing of this pleading, appellee tendered back to appellant the $150 so paid him, which appellant declined to accept.

Appellant then filed its rejoinder, traversing the allegations of the reply and reply as amended, and further alleging that appellee did not make proper tender of the money paid him in settlement of his claim, in that he did not tender it prior to or contemporaneously with the institution of his suit for damages.

It is disclosed by the record that this collision accident, in which plaintiff sustained his injuries, occurred near the point known as "Shepherd's Crossing" where the appellant's railroad track, extending along Carr's Fork, Perry County, Kentucky, crosses the Lexington-Jenkins highway.

A number of plaintiff's witnesses live near this crossing and the railroad bridge, which is some 368 feet below the crossing. Near the bridge there is situated the mining camp of the Happy Coal Company, where there is maintained a railroad station, a post office and a company commissary. On the other side of this crossing, about a quarter of a mile above it, is located the Defiance mining settlement, near which the Marlowe Coal Company operates its mine. At the time plaintiff was injured, he was living at Defiance and employed in the Marlowe mines as a "coal shooter."

The testimony of the plaintiff's witnesses, as to the extent and character of the public's use as a passway of this section of the railroad track running between these two mining camps at Happy and Defiance, something like a half mile apart, is that some of the miners' houses were located at Happy and some fifty or more around and above "Shepherd's" crossing, from where they extended on up the railroad track to the camp of the Marlowe Coal Company at Defiance.

The evidence shows that the company's railroad track, which connects these two mining camps, runs through a sparsely settled country, populated by small mining communities grouped here and there along its course; that a majority of those living in these communities get their mail at Happy post office and that a majority of that majority, it is testified, habitually and daily use the appellant's track, extending between the crossing and Happy, as a footpath in going to and from the post office at Happy for their mail.

No one of these witnesses, however, attempted to state definitely the number or that a large number habitually used this section of the appellant's track as a public passway or what was the extent or daily number of those so using it.

The plaintiff stated that these people usually travelled the railroad track in going to and from "Shepherd's" crossing over to the Happy commissary and post office, because it was a nearer way between such points than was the highway, which runs nearby and parallel with the track between these points. Also he stated that people could be seen "about any time travelling the railroad track," but that he did not know what number so used the track daily.

Another of plaintiff's witnesses stated that he believed there were about ten houses and a store house between the Defiance mining camp and the crossing; that a majority of the people living in them got their mail at Happy and that a majority of that majority used the railroad track most of the time. Also, the plaintiff's witness, Combs, who lives at the Happy camp, and some three or four hundred yards from the railroad crossing, stated that from where he lived, up to and including the Marlowe Camp settlement, there were from fifty to seventy houses; that a majority of their occupants got their mail at Happy; that in going to and from the Happy post office they usually used the highway to the crossing and then followed the railroad track to Happy.

The plaintiff, when testifying, stated that he made his home with his brother at Defiance, where he was employed in the Marlowe Coal Company mines; that on the night before the accident, he had there visited a friend, with whom some liquor drinking was indulged in; that on the following morning, he had taken a drink of liquor before breakfast, after which he had visited a number of his friends living between Defiance and Happy; that he had later gone to the Happy post office for his mail and while there had fallen in with several of his friends, with whom he further indulged in some liquor drinking; that about an hour following this, he left Happy and started for his home some half mile up the track at Defiance; that as he was walking up the appellant's track in going home, he met his friend, Mitchell Taylor, at the railroad bridge, with whom he talked a moment or two, when he again started along his way over the bridge towards "Shepherd's" crossing and his home, a short distance beyond it.

When asked where he was when he was struck by the appellant's train, and what he last remembered as to the circumstances under which he was so struck and injured by the train when he was but a few feet below "Shepherd's" crossing, he answered: "The last thing I remember, I was walking along after I left Mitchell Taylor; the wind was coming down the hollow and it was drizzling rain and I pulled my hat down over my face *** I was on the bridge somewhere."

Further, he stated that he had not heard a bell ring or a whistle sound before he was struck; that when he first found out he had been injured, he was "in the hospital, laying in the bed. I didn't know where I had been, it seemed like I had been asleep somewhere."

When asked if the train had struck him while he was on the bridge, he said: "I wouldn't state what struck me."

Ioma Mohr, a witness for the plaintiff, testified that she saw the appellant's train strike and injure the appellant as he was walking up the track near the crossing; she stated: "I saw Wesley Foust walking up the railroad track and as I looked out and saw him walking up the track the train came up quick and hit him. *** It (the train) stopped as it hit him."

No witness, however, undertakes to state how long it was after the plaintiff left the bridge before the accident occurred near the crossing. The plaintiff does not claim to have walked on the railroad track from the bridge to the point where he was struck, nor does any witness undertake to show what distance the plaintiff...