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

• Decision Date: 27 March 1936
• Citation: 92 S.W.2d 760,263 Ky. 538
• Parties: LOUISVILLE & N. R. CO. v. BRUSH'S ADM'R.
• Court: Kentucky Court of Appeals

92 S.W.2d 760

263 Ky. 538

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

Court of Appeals of Kentucky

March 27, 1936

Appeal from Circuit Court, Breathitt County.

Action by Cas Brush's administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Ashby M. Warren, of Louisville, C. S. Landrum, of Lexington, O. H Pollard, of Jackson, and H. T. Lively and J. P. Hamilton both of Louisville, for appellant.

Williams & Allen, of Jackson, for appellee.

REES Justice.

This is an appeal from a judgment for $4,000 for the death of Cas Brush, who was run over and killed by one of appellant's engines in its yards at Jackson, Ky.

The accident happened early in the morning of March 21, 1934, on what is known as the "hole" track which leaves the yard tracks and runs north off of the railroad property to the Powell-Hackney Grocery Company store. A spur which diverges from this track runs to the Standard Oil Company plant. The track is known as the "hole" track because it is on a lower elevation than the main track and the yard tracks. The railroad depot and yards are located in South Jackson, south of the North fork of the Kentucky river. The business section of Jackson is located north of the river, and a bridge crosses the river a few hundred feet west and north of the depot. The yards extend eastwardly from the depot several hundred feet. Between 500 and 800 people live in South Jackson, most of them south of the railroad tracks and there is proof that a considerable number of them use the railroad tracks in going to and from the business section of the city, although there is a road on each side of, and parallel to, the railroad yards. There are twelve or fifteen dwellings north of the railroad yards and between the yards and the river. The deceased boarded with Ben F. Hiler, who lived north of the railroad yards and about 800 feet from the point where the accident occurred. The plaintiff practiced his case on the theory that the track at the point where his intestate was killed was used by the public to such an extent as to make it a place where the presence of persons upon the track might reasonably be anticipated, and that the railroad company's employees in charge of the engine in question negligently failed to maintain the lookout duty thus imposed upon them. The appellant contends that the evidence wholly fails to show that its tracks at, or near, the point where the accident occurred were habitually used by the public in such large numbers that the presence of persons on the track at that point should be anticipated, and that the deceased, therefore, was a trespasser and not a licensee.

The evidence shows that the deceased was on his way from the Hiler home to the business section of Jackson. One witness met him in the roadway north of the railroad right of way just before the accident. Decedent left the road and turned and started across the track. At that time a switch engine was backing along the "hole" track toward the Powell-Hackney Grocery Company store at a speed of about 18 miles per hour. The brakeman testified that he saw the deceased start across the track when the engine was about 30 feet away. He gave a stop signal to the engineer and the emergency brakes were immediately applied, but the engine struck the deceased and came to a stop with the first trucks of the tender over him. Two of appellee's witnesses stated that the engine was 12 or 15 feet away when the deceased started across the track. The evidence as to whether a lookout was being kept or warning signals were given was conflicting, but if the deceased was a trespasser the railroad company did not owe him a lookout duty. A number of witnesses testified as to the extent of the use of the tracks by the public. One or two testified that as many as 200 to 400 people used the tracks daily, but most of the witnesses placed the number at 100 to 200. Some of them testified as though the railroad yards were used indiscriminately, but when questioned further all of them stated that most of the people residing in South Jackson, who used the railroad...