Louisville & Nashville R. R. Co. v. Lowe

• Decision Date: 13 May 1904
• Citation: 118 Ky. 260
• Parties: Louisville & Nashville R. R. Co. v. Lowe.
• Court: Kentucky Court of Appeals

118 Ky. 260

Louisville & Nashville R. R. Co. v. Lowe.

Court of Appeals of Kentucky.

May 13, 1904.

APPEAL FROM WASHINGTON CIRCUIT COURT — J. P. THOMPSON, SPECIAL JUDGE.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED.

W. C. McCHORD, WALKER D. HINES, BENJ. D. WARFIELD, H. W. BRUCE AND E. W. HINES, ATTORNEYS FOR APPELLANT.

COPYRIGHT MATERIAL OMITTED

J. W. S. CLEMENTS AND I. H. THURMAN, ATTORNEYS FOR APPELLEE.

OPINION OF THE COURT BY JUDGE HOBSON — REVERSING.

Appellee, William S. Lowe, was in the service of appellant, the Louisville & Nashville Railroad Company, as assistant inspector of trains at Lebanon Junction, which is a town of about 1,200 inhabitants, at the junction of the Knoxville branch with the main line of appellant's road. There is maintained at this place a railroad yard, containing an extensive system of side tracks, used in making up freight trains going out of the yards. The regular trains, too, pass over the main tracks, and are sometimes switched on the side tracks, so that cars are moving about the yard pretty much all the time. A switch engine is kept in the yard for the purpose of switching cars and making up trains. Large coal bins are maintained there by the appellant, at which all engines are supplied with coal. Perhaps as many as 150 engines, including the different passages of the switch engine, pass across the yard every day. The coal bins are north of the station, and in a curve of the track, so that an engine beyond a certain point can not be seen south of the bins. Appellee had been the watchman in the shops for about six weeks before he was made assistant car inspector. On the 12th of September, 1899, which was the first day that he served as car inspector, he went on duty at six p. m., and inspected a freight train then ready to go out southward on the Knoxville branch. The train was standing on a side track east of the main track, fronting south. He began at the engine on the west side of the train, and inspected the cars, going back from one to another until the inspection was finished, when the train pulled out. The toolhouse to which he was then to go was on the east side of the tracks, and south of the point where he then was. So he walked southward along by the side of the departing train, and, when the side track merged in the track next west of it, he got over on that track, and then on the main track. While he was walking southward on the main track, an engine and tender backing down on that track ran upon him in the rear, knocking him down, cutting off his right arm, and inflicting severe bruises, for which injuries he recovered damages in the sum of $13,000. The evidence introduced by him on the trial tended to show these facts: The track was straight for some distance, and appellee, walking along with his back to the engine, could have been seen by the persons on it for some distance if a proper lookout had been kept. The tender had been loaded with coal at the coal bin. The coal was piled up higher than the engineer's head, so that his line of vision did not reach the track, but rose above the track the further it was prolonged, and he was therefore unable to see anything on the track in front of him. A passenger train from the south was just about due on the main track, and appellee supposed that no other train would be on that track. So he kept a lookout in front of him for it, but did not look behind him after he started south. When he turned and started south, he looked back, and, seeing nothing, supposed the way was clear. The engine by which he was hurt was then standing at the coal bin around the curve. After taking coal, it came rather rapidly southward, in order to get off the main track before the arrival of the passenger train from the south. Appellee's proof tended to show that no signal was given of the movements of this engine, and that it was run substantially without any lookout in front of it. The proof is conflicting as to whether signals were given by the ringing of the bell, and as to the speed of the train, but the evidence for appellee shows that the engine was running at something like twelve or fifteen miles an hour. When it stopped after running over appellee, it was just even with the engine of the outgoing freight train, by the side of which he had been walking, and had therefore run something like a quarter of a mile more than that engine after it started and appellee turned and began to walk south. When it stopped it had only one minute to get in on the side track in time, according to appellant's proof. Appellee could not go directly to the toolhouse, because the outgoing freight train was between him and it. He perhaps got on the main track, thinking no other train, except the passenger train from the south, could properly be on that track at that time, and this would be in front of him. There is some evidence from which it is argued that the time had already expired when any other train, under the rules, might properly use the main track. The men in charge of the engine did not see appellee at all, and did not know he was hurt until informed by others.

Appellant complains that the court refused to instruct the jury peremptorily to find for it. It also complains of the instructions given by the court. The court, in substance, instructed the jury that if they believed from the evidence that appellee, at the time he received the injuries, was upon appellant's track in the usual course of his employment, and that its agents in charge of the engine and tender that injured him negligently failed to ring the bell or give other signal of its approach, or negligently failed to stop it after they saw his peril, or after they might have seen it by the use of reasonable care, then they should find for the plaintiff, unless they believed from the evidence that he by his own negligence contributed to such an extent to the injury that but for his negligence it would not have happened, and that in this event he could not recover, unless appellant's agents in charge of the engine and tender knew, or could have known by ordinary attention, of the peril in which his negligence had placed him, and thereafter failed to observe reasonable care to avoid the injury which followed.

It is earnestly maintained for appellant that the evidence shows no negligence on its part; that, as to appellee, it was not required to give notice of the movement of its trains, or keep a lookout for him in moving them. In support of this view, we are referred to a number of decisions in other jurisdictions; but, without discussing them, we conclude that the rule has been so often held otherwise in this State, that it is no longer an open question.

Appellant has at Lebanon Junction something like 200 employes. The place at which appellee was injured is used by them and by other persons, to a great extent, in coming and going. The proof presents a case where the presence of persons on the track should reasonably be anticipated by those in charge of the train. The point was not far from the station — between it and the coal bins — and where a great many people passed back and forth, especially during the day. In Shelby's Adm'r v. Cincinnati, etc., Railroad, 85 Ky., 224, 8 R., 928, 3 S. W., 157, the intestate was in the yard of the railroad at Junction City for the purpose of soliciting employment in watering stock, and was run over by a train backed without signal or outlook. The place was not so much traveled as in the case before us, and the intestate was barely a licensee, and yet the court held the company liable. After showing that increased vigilance and precaution are required, the court said: "But it is obvious that neither the duty of giving the warning of the approach of trains, nor of resorting to the proper and necessary means to prevent collision with persons, can be performed unless there be some one in a position to see ahead of the train and to control it."

In Conley's Adm'r v. Cincinnati, etc., Railroad, 89 Ky., 402, 11 R., 602, 12 S. W., 764, the intestate was killed in like manner by a backing train as he was crossing the track, and the case is discussed on the idea that he was technically a trespasser. The court held the company liable, and said "A train of running cars — these were running, according to the appellant's proof, at the rate of about fifteen miles per hour — is more dangerous to the life of persons with whom it comes in contact than that of the most ferocious and powerful wild animal. And certainly it can not be lawfully turned loose to run by itself, and expose persons that may be on the track, either by accident, mistake, or design, to its destructiveness. Humanity positively forbids the owner of property that is dangerous to human life and safety to knowingly turn such property loose, even upon his own ground, where it will do mischief even to a technical trespasser." In L. & N. Railroad v. Potts, 92 Ky., 30, 13 R., 344, 17 S. W., 185, the deceased was in the employ of the railroad company at Junction City, a town of about 400 people. It was his duty to enter in a book the numbers of the cars standing on the side tracks and point out to the engineer those he was to take up. While standing on one of the tracks, he was run over and killed by some cars detached from the engine moving up behind him without any lookout or signal of their approach. The court said: "The Shelby case, supra, which occurred in the same town, and the Conley case, supra, seem conclusive of the question. It was held on those cases that neither a train nor a single car should be permitted to move on a side track in a city or town, without some servant is in position to give warning of its approach, and to control its movements. . . . It was as essential that the servant should be in a position thus to see and give warning, as he was to be in a position to control the cars." In Barber v. Cincinnati, etc., Railroad, 14 Ky. Law Rep., 869, 21 S. W., 340,...