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

• Decision Date: 04 September 1884
• Citation: 6 Ky.L.Rptr. 163,82 Ky. 212
• Parties: L. & N. R. R. Co., v. Howard's Adm'r.
• Court: Kentucky Court of Appeals

82 Ky. 212

6 Ky.L.Rptr. 163

L. & N. R. R. Co., v. Howard's Adm'r.

Court of Appeals of Kentucky.

September 4, 1884

1. Appellants had the exclusive right to the use of their railroad at the place where decedent lost his life, and they can not be held responsible unless it should appear that those in charge of the train, after discovering the condition and danger of the party injured, could, by proper care, have avoided the injury.

2. The right of a railroad company to use its track is exclusive of the public, except where the public have the right to cross it, or where the use of the road in a reckless or improper manner must necessarily endanger the lives of those whose proximity to it requires the exercise of care and caution.

3. In passing through cities and towns greater care must be exercised than on that portion of the road where human beings have no right nor license to be, especially at night.

4. The mere fact that the speed of appellant's train is unusually fast at a point where no intelligent human being can have the right to be on the track, is of no significance in favor of intestate. He had no right to be on the track and being a trespasser at 11 o'clock at night, willful neglect must be shown on the part of appellants before they can be held responsible.

APPEAL FROM MARION CIRCUIT COURT.

ROUNTREE & LISLE AND W. LINDSAY FOR APPELLANT.

1. The proof shows without controversy that Howard was on appellant's track at eleven o'clock at night, and at a point where no county road passes, and where appellant's have the exclusive right to their track. He was a trespasser, and appellant's can not be held in damages, unless it be shown that the managers of the train knew he was upon it, and knowing it, took no means to prevent his death.

2. If an engineer is bound to suppose that the track will be obstructed, away from streets and public crossings, it necessarily follows that all rapid transit must be abandoned. R. R. Co. v. Hoehl, 12 Bush, 41; Kentucky Central R. R. Co. v. Thomas, 79 Ky. 163; R. R. Co. v Jones, 5 Otto, 442; Cooley on Torts, page 675; Houston's Case, 5 Otto, 697; Bellefontaine Railway Co. v. Hunter, 5 Am. Rep., 201; Brown v. Hannibal & St. Joe R R., 11 Am. Rep., 420; Sher. and Red. on Neg., sec. 493; Sullivan v. Lou. Bridge Co., 9 Bush, 90; Baxter v. Troy and Boston R. R. Co., 41 N.Y. 502; Gen Statutes., page 339, section 4; Lou., Cin. & Lex. R. R. v. Goetz, ad., 79 Ky. 443; Phil. and Reading R. R. v. Hummel, 8 Wright, 378; Cauley v. Pittsburg and Cincinnati R. R., cited in vol. 2, Am. and Eng. R. R. cases, page 4; Spearen's Case, 47 Pen. St., 300; L. & N. R. R. v. Cooper's Ad., MS. Op., February, 1882; Sher. and Red. on Neg., sec. 478; Bemis v. Connecticut and Passumpsic R. R., 1 Am. Rep., 340; Terre Haute and Ind. R. R. Co., 6 Am. Railway Rep., 359; Kentucky Central v. Talbott, 78 Ky. 622; L. & N. R. R. Co. v. Watkins, MS. Op., Sept 9, 1880; 2 Red. on Railways, chap. 27, sec. 193, subsec. 17; Dolfinger v. Fishback, 12 Bush, 474; Zimmerman v. Hannibal & St. J. R. R., 71 Mo.; reports cited in full in vol. 2, Am. & Eng. R. R. Cases, page 194; Civil Code, secs. 326, 328; Perry v. Pusey, MS. Op., Court of Appeals, March, 1882; Lou. City R. W. v. Weams, MS. Op., Court of Appeals, October, 1882; Quaid v. Cornwall, 13 Bush, 601.

WM. C. & S. A. RUSSELL FOR APPELLEES.

1. Although appellee suing for an injury to his intestate resulting from gross negligence of the intestate, was himself guilty of negligence, if, nevertheless, the injury might have been avoided by the proper care of appellants, such contributive negligence will not exonerate appellants.

2. The instructions asked for by appellants would permit an engineer to blindfold himself and dash ahead in total disregard of human life, and if death ensue no responsibility will attach, because the engineer did not see and could not see the peril.

3. Instruction (a) is error, because it permits appellant to run at the most reckless speed, even though such speed endanger the public. Bell v. Rowland, Hard., 301; Gallatin v. Bradford, 1 Bibb., 209; Shay v. R. & S. T. Co., 1 Bush, 109; Jarmen v. Howard, 3 Mar., 384; McPherson v. Hickman, 1 Mon., 170; Rowland v. Hanna, 2 B. M., 129; Easeley v. Easeley, 18 B. M., 93; Stephens v. Brook, 2 Bush, 138; Fightmaster v. Beasley, 7 J. J. M., 411; Davis v. Curry, 2 Bibb; P. & M. R. R. Co. v. Hoehl, 12 Bush; L. & N. R. R. v. Collins, 2 Duv., 116; L. & N. R. R. v. Sickings, 5 Bush, 4; L. & N. R. R. v. Filbern, 6 Bush, 575; L. C. & L. R. R. v. Mahoney, 7 Bush, 239; 12 Bush, 43; Sullivan v. Lou. Bridge Co., 9 Bush, 90; Jacob v. L. & N. R. R. Co., 10 Bush, 267; P. & M. R. R. Co. v. Hoehl, 12 Bush, 43.

OPINION

PRYOR JUDGE:

In July, 1881, a young man by the name of John Howard was run over and killed by the cars of the appellant, at a point near the town of Chicago, in the county of Marion. The appellee, Thomas Roberts, qualified as the administrator of his estate, and instituted the present action under the statute against the railroad company, alleging that the death of his intestate was caused by the negligence of its employes in running the train. There are two counts in the petition; the one for ordinary negligence, and the other for willful neglect. At the close of the evidence for the plaintiff, the appellant moved for a peremptory instruction that was refused, and upon the final hearing a verdict and judgment was rendered against the appellant for $5,000.

This court has often held that, where the evidence conduced in any degree to establish the right of recovery, it is improper to instruct the jury to find for the defendant, and before a warrant is directed to be entered, it must appear, admitting the testimony to be true, and the expenses paid, deducible from it, the party seeking to recover has failed to make out his case.

With this rule of practice long established and often recognized by this court, it is proper to determine in the first place the question arising on the motion for a non suit, as it may obviate the necessity for considering the other propositions presented in the brief of counsel. Jarmen v. Howard, 3 Mar., 384; McPherson v. Hickman, 1 Mon., 170; Rowland v. Hanna, 2 B. M., 129; Easeley v. Easeley, 18 B. M., 93; Bell v. Rowland, Hard., 301; Gallatin v. Bradford, 1 Bibb., 209; Shay v. Railroad Company, 1 Bush, 109.

It appears from the evidence on the part of the plaintiff that defendant's road was about one-fourth or one-half mile south of where the appellee's intestate was killed is very crooked, passing through several cuts and around curves, and that this part of the road the cars passed over before reaching the intestate. The latter had been working as one of the section hands on defendant's road prior to his death, and whether he was at the time in the employment of the company does not distinctly appear, nor is it important to inquire in view of the facts before us.

The intestate was boarding with Pat Kearns, who was the section boss, and lived about one and a half miles north of Chicago, and about one-half miles north of where intestate was killed. The intestate had been to a dance near Chicago, and in going to his boarding house at Kearns', had gone on to the railroad and was following its track to his destination instead of the ordinary dirt road, and while on the company's road, about eleven or twelve o'clock at night, was run over and killed.

The killing was on a long fill near a curve, with a down grade in the direction the engine was going at the time of the accident, and away from any town or road crossing. The engine had become disabled in some way, and was on its way to Louisville for repairs, and had no train attached to it. From the testimony of the appellee, and this could alone be considered on the motion, the engine was running with great rapidity, ringing no bell or blowing any whistle at Chicago or any of the crossings. No one was on the engine and tender but the engineer and fireman; it was a clear night, but no moon, and the employes seem not to have known until the...