McKinney's Adm'X v. Cin., N.O. & T.P.R.R. Co.

• Decision Date: 26 January 1932
• Citation: 242 Ky. 167
• Parties: McKinney's Administratrix v. Cincinnati, N.O. & T.P. R.R. Company et al.
• Court: United States State Supreme Court — District of Kentucky

242 Ky. 167

McKinney's Administratrix v. Cincinnati, N.O. & T.P. R.R. Company et al.

Court of Appeals of Kentucky.

Decided January 26, 1932.

1. Railroads. — Engineer discovering trespasser's peril in time to avoid injuring him by exercising ordinary care in use of means at hand, consistent with safety of persons on train, must do so and stop train, if ordinary prudence requires.

2. Railroads. — Engineer owed trespasser, near or on track so far distant that he was not in immediate danger, no duty to stop or slacken speed of train until peril was discovered in time to avoid injury by using means at engineer's command.

3. Railroads. — Engineer was not required to anticipate that trespasser, turning back on train, which he saw, would not enter or remain on track only 25 yards or immediately in front of train.

4. Railroads. — Engineer held not negligent in not ringing bell or blowing whistle when trespasser went on track 25 yards or immediately in front of train.

5. Railroads. — Engineer discovering that trespasser, aware of train's presence, is not going to leave track when distance is too short to stop train, need only exercise ordinary care in using means at his command to avoid injury.

6. Railroads. — Railroad company was not liable for injury to or death of one going on track in front of approaching train, so near that collision could be avoided, though his presence near track was known to train crew.

7. Railroads. — Evidence held to authorize jury's finding that death of plaintiff's intestate resulted from his own action in going onto track in front of approaching train.

8. Railroads. — Mental unsoundness of deceased's son, whom deceased was rescuing when struck by train, did not change trainmen's duty toward deceased, where they had no knowledge of son's condition.

9. Trial. — Instructions should be given in as specific and concrete form as possible.

10. Appeal and Error — Trial. — Use of word "precaution" in instructions as to engineer's duty toward trespaser on track, held not misleading or prejudicial to railroad company.

The word "precaution," as used in instruction, meant "previous caution or care," "caution previously applied," "a measure taken beforehand to ward off danger."

11. Railroads. — Instruction that engineer was required to use means at his command, including ringing of bell and sounding of whistle, to avoid injury to trespasser on track, held properly refused.

Appeal from Lincoln Circuit Court.

FOWLER, WALLACE & FOWLER for appellant.

K.S. ALCORN and GALVIN & TRACY for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

Mitchell B. McKinney's son was of unsound mind and of a violent disposition. He strayed from the home of his father, who resided in Waynesburg, a small village in Lincoln county, on the Cincinnati, New Orleans & Texas Pacific Railroad. While in pursuit of his son, and endeavoring to rescue and return him to his home, Mitchell B. McKinney was killed by a south-bound freight train of the Cincinnati, New Orleans & Texas Pacific Railroad Company, at about 8:30 a.m. on October 18, 1928. L.W. Camden was the engineer, and L.E. Chapman fireman, on the engine at the time. The accident happened in the presence of a number of persons. When he located his son, he (the son) was going north on the track of the railroad. The deceased, on overtaking him, took hold of him and began forcibly to lead him south, toward his residence. The young man was large, weighing about 190 or 200 pounds, and was a giant in strength. After the father took hold, and as he endeavored to force him toward his home, the son would catch his foot under the rail so as to resist his efforts, and in so doing would cling to the track. Carl McKinney, another son of the deceased, a Mr. Lanigan, and Camden, the engineer in charge of the train, were the only eyewitnesses to the killing. Carl McKinney states that his father and brother were about 150 yards, and Lanigan says 25 yards, in front of the train at the time the deceased and his son went on the track. The engineer claims they "jumped up in front of the engine."

On the trial before a jury, a verdict was returned for the railroad company and Camden, the court having given a peremptory in favor of the fireman, Chapman. The appellant appeals.

It is insisted that the instructions present a fatal error, entitling appellant to a reversal, and that the court erred in refusing the offered instructions.

It is argued that four distinct lines of cases are applicable in an action for the death of a trespasser on railroad track: (a) Where the trespasser is not observed and those in charge of the train are unaware of his danger. To this class appellant assigns Louisville & N.R.R. Co. v. Taylor's Adm'r, 169 Ky. 436, 184 S.W. 371; Louisville & N.R.R. Co. v. Weiser's Adm'r, 164 Ky. 28, 174 S.W. 734; Reynolds' Adm'r. v. C., N.O. & T.P. Ry. Co., 148 Ky. 252, 146 S.W. 416. (b) Where the trespasser is discovered traveling by the side of the track in a position of safety, when he suddenly changes his course and comes immediately in front of the moving train. The appellant cites as this line of cases Louisville & N.R.R. Co. v. Trower's Adm'r, 131 Ky. 589, 115 S.W. 719, 20 L.R.A. (N.S.) 380; Louisville & N.R.R. Co. v. Fentress' Adm'r, 166 Ky. 477, 179 S.W. 419, and others. (c) Where the trespasser is traveling on the track of the railroad and unaware of the approach of the train, and is injured or killed. As an example of this line, she cites Murray v. Southern Ry. Co., 140 Ky. 453, 131 S.W. 183; Watson's Adm'r v. C. & O.R.R. Co., 170 Ky. 258, 185 S.W. 852. (d) Where those in charge of the train discover the presence of a trespasser on the track at such a distance as will enable him to avoid an injury by sounding an alarm, lessening the speed, and if necessary stopping the train before a collision, especially where the circumstances surrounding the party indicates his confusion or trouble or unconsciousness of the approaching danger. It is urged that this case is plainly within this last class. To sustain this insistence she cites Johnson's Adm'r v. L. & N.R.R. Co., 91 Ky. 651, 25 S.W. 754; Louisville & N.R.R. Co. v. Hunt's Adm'r, 142 Ky. 778, 135 S.W. 288, 290; Murray v. Southern Ry. Co., 140 Ky. 453, 131 S.W. 183; Reynolds' Adm'r v. C., N.O. & T.P. Ry. Co., 148 Ky. 255, 146 S.W. 416, and many others.

It is especially urged that the principles stated and the instructions outlined in Reynolds' Adm'r v. C., N.O & T.P. Ry. Co., 148 Ky. 255, 146 S.W. 416, and Louisville & N.R.R. Co. v. Hunt's Adm'r, supra, and Murray v. Sou. R.R. Co., supra, are particularly applicable to, and should control, the present case. In the Reynolds' case the deceased sat down on the end of a tie on the west side of the track, resting against the west rail of the track. A short time later, a north-bound freight train struck him while in this position and killed him. A motion for a peremptory instruction was sustained, and this act of the trial court was affirmed by this court.

In Louisville & N.R.R. Co. v. Hunt, supra, the deceased was struck by the train which he had been sent out to flag. It was running on time. It was held by this court that the court should have instructed peremptorily the jury to find for defendant. The evidence showed:

"Hunt suddenly rushed on the track just in front of the train, and too close to it for the engineer to avoid striking him."

In Murray v. Southern Ry. Co., a trespasser who was deaf was seen walking on the railroad track ahead of a push car on which a railroad crew was conveying a load of rails, at a rate of from four to six miles per hour. The court held that the crew was not required to stop the car unless they had reason to believe that the man was unconscious of his danger, but there was no reason to anticipate danger to the deceased until his actions showed he had not heard the signals until it was too late for the crew to stop the car to avoid injuring him. The court peremptorily instructed the jury to find for the railroad company. This was approved by this court.

The prevailing rule applicable in such cases was aptly stated by this court in Louisville & N.R.R. Co. v. Horton, 187 Ky. 617, 219 S.W. 1084, 1087, in this language:

"The doctrine is well settled in this state that although a person is a mere trespasser upon the track of a railroad, and is guilty of negligence in going or being thereon, and although the servants of the railroad are under no duty of keeping a lookout for him nor of giving him any warning of the approach of a train, nor of moderating its speed, nor of having it under control, nor is the failure to do any of these things negligence as to him, yet, if his negligence has resulted in putting himself in a place of peril of being killed or seriously injured by the train, and the engineer operating the train discovers the peril in time, by the exercise of ordinary care in the use of the means which he has at hand, consistent with the safety of the persons upon the train, to avoid injuring the trespasser, it is his duty to do so, and if he fails to exercise ordinary care to protect him from harm, and he is injured thereby, the railroad company will be liable for the damages. If ordinary prudence requires the train to be stopped in order to shield the trespasser from death or harm, it is the duty of the engineer to stop the train before coming in contact with the trespasser, if he can do so by the exercise of ordinary care with the means he has to do so. L. & N. Ry. Co. v. Benke's Adm'r, 176 Ky. 259, 263, 195 S.W. 417; L. & N.R.R. Co. v. Davis, 162 Ky. 578, 172 S.W. 966; W. & P.C. Ry. Co. v. Charle's Adm'r, 168 Ky. 42, 181 S.W. 614; Becker v. L. & N.R.R. Co., 110 Ky. 474, 61 S.W. 997, 22 Ky. Law Rep. 1893, 53 L.R.A. 267, 96 Am. St. Rep. 459; L. & N.R.R. Co. v. Bell, 108 S.W. 335, 32 Ky. Law Rep. 1312."

Under this rule the engineer in charge of the train owed the deceased no duty until his peril was actually...