Miller's Adm'r v. Illinois Cent. R. Co.

• Decision Date: 28 April 1909
• Citation: 118 S.W. 348
• Parties: MILLER'S ADM'R v. ILLINOIS CENT. R. CO.
• Court: Kentucky Court of Appeals

118 S.W. 348

MILLER'S ADM'R v. ILLINOIS CENT. R. CO.

Court of Appeals of Kentucky.

April 28, 1909

Appeal from Circuit Court, Ohio County.

"Not to be officially reported."

Action by J. L. Miller's administrator against the Illinois Central Railroad Company. From a judgment for defendant plaintiff appeals. Affirmed.

G. B Likens, for appellant.

H. P Taylor, Blewitt Lee, and Trabue, Doolan & Cox, for appellee.

CLAY C.

This action was instituted by J. W. Miller, as administrator of Joseph L. Miller, deceased, against the appellee, Illinois Central Railroad Company, to recover damages growing out of the death of his intestate. At the conclusion of the plaintiff's testimony, the railroad company asked for a peremptory instruction. This was refused. At the conclusion of all the testimony the motion for a peremptory instruction was renewed, and sustained. Judgment was then entered in favor of appellee. From that judgment, this appeal is prosecuted.

The record discloses the following facts: Horse Branch, in Ohio county, Ky. is a town of the sixth class, and has about 160 inhabitants. Appellee owns and operates a line of railroad through the town. It also operates a branch line extending from the main line at Horse Branch to Owensboro. Appellee's depot is located about 1,200 feet east of the town limits. On January 22, 1908, appellant's intestate, Joseph L. Miller, arrived at Horse Branch depot on appellee's east-bound train, which arrived at about 12:55 a. m. About an hour later he was struck and killed by appellee's freight train No. 151. Besides the track on which appellant's intestate was struck, appellee had three other tracks: One known as the "Horse Branch" track, another the "business" track, and the third "the siding." The point at which the accident occurred was not within the limits of the town of Horse Branch, but was at a point 40 feet east of the town limits. The accident did not occur on a public road or street. Appellee's tracks, as they approach the depot and for 400 or 500 feet beyond it, have a considerable curve. The depot is about 1,200 feet from the place of the accident. The distance of the place of accident from the point where the track begins to curve around the depot is 767 feet; that is, the track is straight for about that distance. As the train which struck decedent approached Horse Branch, it whistled for the semaphore and received the board. It answered the board by two short blasts of the whistle. As it rounded the curve onto the straight track, it whistled certain signals to one or more trains standing on the side tracks. At that time there were three other trains on tracks other than that upon which appellant's intestate was killed. There were also some box or storage cars upon these tracks. While the decedent might have been seen from the depot if all the tracks were clear, it is certain from the evidence that the trains and cars upon the track obstructed the view of the engineer and fireman of the train until the straight track was reached. There was some testimony to the effect that the decedent had been loitering around the place of the accident a few minutes prior to the time he was killed. According to the testimony of the engineer and fireman in charge of the train that killed decedent, and of the only eyewitness who testified for plaintiff, the engineer, immediately upon reaching the straight track, gave the alarm signal, applied the brakes, reversed the engine, and continued to signal by repeated blasts of the whistle until decedent was killed. According to the testimony of an engineer who was in charge of an engine upon a side track, the decedent hesitated as if undecided whether to go to one side or the other side of the track. He was then struck and killed. The decedent was quite deaf. One witness testified that he had to write in order to talk to people, although witness claimed that decedent could hear a loud noise. The repeated blasts blown by the engineer were heard by witness as located some distance from the place of the accident. The train causing the injury consisted of 26 cars. It ran 43 car lengths after the engineer discovered decedent's position. Its speed at the time was about 40 miles per hour.

There was proof to the effect that there was some travel along appellee's tracks between Horse Branch and the depot that passengers from Horse Branch in going to and from the depot, instead of using the road provided for that purpose by the railroad company, would use appellee's tracks. It is therefore insisted by counsel for appellant that this customary use of appellee's tracks imposed upon it the duty of keeping a lookout, of having its trains under reasonable control, and of giving timely warning of the approach of its trains. In discussing when and under what circumstances such duties are imposed upon railroad companies this court, in the recent case of Chesapeake & Ohio Railway Co. v. Nipp's Adm'x, 125 Ky. 49, 100 S.W. 246, uses the following language: "It has been ruled by this court that, where the public generally with the knowledge and acquiescence of the railroad company have continually used the tracks for a long period of time, the...