Louisville & N.R. Co. v. Redmon's Adm'x

• Decision Date: 20 March 1906
• Citation: 91 S.W. 722,122 Ky. 385
• Parties: LOUISVILLE & N. R. CO. v. REDMON'S ADM'X.
• Court: Kentucky Court of Appeals

91 S.W. 722

122 Ky. 385

LOUISVILLE & N. R. CO. v. REDMON'S ADM'X.

Court of Appeals of Kentucky.

March 20, 1906

Appeal from Circuit Court, Nelson County.

"To be officially reported."

Action by J. R. Redmon's administratrix against the Louisville &amp Nashville Railway Company for damages for the death of plaintiff's decedent. From a judgment for plaintiff defendant appeals. Reversed.

Benjamin D. Warfield and Jno. S. Kelly, for appellant.

N.W Halstead, Morgan Yewell, F. E. Daugherty, and Greene & Van Winkle, for appellee.

SETTLE J.

Appellee as administratrix of the estate of her deceased husband, J. R. Redmon, by suit in the Nelson circuit court recovered of appellant a verdict and judgment for $2,500 damages for his death, resulting from injuries inflicted by one of its passenger trains which ran against him in the village of New Haven.

In the motion and grounds for a new trial complaint was made by appellant that numerous errors were committed to its prejudice by the lower court during the progress of the trial, and these alleged errors are relied upon on this appeal for a reversal of the judgment. Chief among them was the refusal of the court to give a peremptory instruction directing the jury to find for appellant; such instruction having been requested by it following the introduction of appellee's evidence, and again when all the evidence had been heard by the jury. We will first consider this contention. According to the evidence the deceased was struck by the train at a cattle guard over which he was attempting to cross to reach a public street of the town, the cattle guard being only a few feet from where the street or turnpike crosses appellant's railroad track. Appellant's track and the ground on either side of it belonging to its right of way is fenced from the cattle guard to the railroad bridge across Rolling Fork River; the bridge being about 700 feet from and north of the cattle guard. The fence on either side of the right of way is made to connect with the side of the bridge at its south end, so by means of the fence on each side, the bridge at one end and the cattle guard at the other, appellant's right of way from the point where deceased was struck by the train to the river is entirely inclosed. Although a part, and possibly all, of appellant's right of way between the cattle guard and the river is within the corporate limits of the town of New Haven, no part of the town, in fact, lies north of the cattle guard--that is, there are no streets on or along the sides of appellant's right of way between the cattle guard and bridge, and no houses fronting thereon, though it was in proof that persons in going to a mill on the river below the bridge sometimes passed over the cattle guard and walked through appellant's inclosure, and over its right of way, getting over the fence near the bridge, and also that pedestrians from Larue county--the line between which and Nelson county at that point is the river--frequently would cross on the bridge and enter New Haven through appellant's inclosure.

It further appears that about half an hour before deceased was injured he left his store and, passing over the cattle guard, walked up the railroad track a distance of 100 feet to his garden, which fronts appellant's right of way, and is separated therefrom by the fence. After working a while in the garden, he left it, and started toward his store, walking down appellant's right of way, not on the railroad track, but beside it, in a path that ran close to the ends of the ties. At the time deceased left the garden the train was in plain view of him, as it had then crossed the bridge, but apparently without heeding its coming he walked on ahead of it until he reached the cattle guard, and then stepped upon the track and attempted to pass over the cattle guard ahead of the train, when it was within 15 or 20 feet of him. If the deceased had no right to use the railroad track at the place and at the time he was injured, he was a trespasser, and, if a trespasser, those in charge of the train owed him no duty except to use reasonable care to prevent the train from striking or running over him after discovering his peril; upon the other hand, if, at the time of receiving his injuries, he was in the rightful use of the railroad track, those in charge of the train owed him a higher duty--that is, to use ordinary care to discover his presence, and to give such signals or warnings of the approach of the train as were reasonably necessary to inform him of the danger he would incur in walking too near the track, or in getting upon it in front of the train.

It is alleged in appellee's petition that deceased was injured while "upon or near the public road and street of the city of New Haven." According to the undisputed facts deceased was not upon a public road or street of New Haven when injured. It is true, he was at the time near a road or street of the city where it crosses the railroad track, but nevertheless on the right of way and track of appellant, which the public had no right to use, and to prevent the use of which the cattle guard was constructed. Where the streets of a town or city are occupied by the tracks of a railroad company, the railroad and the public have mutual rights, and owe to each other reciprocal duties in the exercise and protection of such rights; it being the duty of those in charge of the train in such a state of case to use ordinary care to prevent injury to persons in the way of the train, by slackening its speed, giving the customary signals of its approach, and keeping a constant lookout, and likewise the duty of persons using the street or railroad track over which the train has the right of passage to use the same degree of care in protecting themselves against collision with and injury from the train. But, while this is true, a railroad company may have the exclusive use of so much of its right of way within the corporate limits of a town or city as is not situated upon or immediately paralleled by streets, highways, or alleys, to the use of which the public are entitled, and especially is this true if the right of way be inclosed to prevent its use by the public.

It is argued by counsel for appellee that appellant did not exhibit title to the right of way from the cattle guard to the bridge. We do not think the introduction of title papers was necessary, as the testimony without contradiction showed that the right of way in question has been occupied by appellant's railroad track and been in its actual adverse possession continuously for more than 45 years, though not so long inclosed; nor is it material that all of the fencing separating the right of way from the adjoining lands of others was not built by appellant. The proof was conclusive that the right of way from the cattle guard to the river was completely inclosed by fences, wings, the cattle guard and bridge, and a more effective way of asserting exclusive dominion over property cannot be adopted by the owner or claimant than having it inclosed. As the right of way in question is not situated upon or adjoined by a parallel street, no houses front on it, and it is besides inclosed to prevent its use by the public, the fact that residents of New Haven often, or even habitually, used it in passing between the cattle guard and the bridge, or intermediate points or that persons from Larue county frequently did so, whether by walking on the track or on the right of way outside of the rails, did not amount to license to so use it, or impose any greater duty upon appellant with respect to the safety of those enjoying such use; hence the testimony admitted on that point was incompetent. In Brown's Adm'r v. L. & N. R. R. Co., 97 Ky. 228, 30 S.W. 639, it was said by this court: "We think the better doctrine is that simple acquiescence...