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

• Decision Date: 12 June 1923
• Citation: 199 Ky. 694,251 S.W. 968
• Parties: ROBINSON'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

251 S.W. 968

199 Ky. 694

ROBINSON'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

June 12, 1923

Appeal from Circuit Court, Gallatin County.

Action by J. Preston Robinson's Administrator against the Louisville & Nashville Railroad Company. From a judgment for defendant on demurrer, plaintiff appeals. Affirmed.

John L Vest, of Walton, for appellant.

B. D Warfield and Hamilton & Beckham, all of Louisville, and Robert B. Brown, of Warsaw, for appellee.

McCANDLESS J.

The petition substantially alleges the following facts: The right of way of the Louisville & Nashville Railroal Company in the town of Sparta runs east and west, and is intersected by a public highway. Three hundred fifty feet west of this intersection the railway company has for more than 15 years owned and maintained a house occupied by its section foreman and his family as a residence. It faces the railway tracks to the north. The company owns other property to the east and west, while that on the south is owned by a private individual, this lot being entirely inclosed, the only passway in or out being upon the tracks of the company east to the public highway. There are four of these lines of track, the southernmost being a spur, that begins at the highway and runs 300 feet west to a bumper. The company filled the spaces between these tracks with cinders level with the ties, extending the cinders in the space west of the spur, thereby making a path from it to the section house. The section foreman, with the knowledge of the company, had for many years been an agent of the Cincinnati Enquirer, and kept those papers for sale at his house (though it does not appear whether he delivered them at his house or at the homes of his patrons). On the day of his death plaintiff's intestate went to this house and purchased a paper, and was returning on the spur. At the same time a freight train was passing him on the main track going in the same direction he was, when by the gross negligence of defendant's agents and servants one of the cars jumped from the track and fell upon him killing him instantly. From a judgment sustaining a demurrer and dismissing the petition, plaintiff appeals.

The established doctrine as to trespassers upon or near the railway tracks is that the company's agents owe them no duty unless they are in peril, nor until such peril is discovered. As to bare licensees, the general doctrine seems to be that, as regards premises and equipment, the duty of the licensor is to abstain from willfully and wantonly injuring them, or, as it is sometimes termed, is liable for active negligence only. Johnson v. Paducah Laundry Co., 122 Ky. 369, 92 S.W. 330, 29 Ky. Law Rep. 59, 81, 5 L. R. A. (N. S.) 733; Indian Refining Co. v. Mobley, 134 Ky. 822, 121 S.W. 657, 24 L. R. A. (N. S.) 497; L. &amp N. R. Co. v. Hobbs, 155 Ky. 130, 159 S.W. 682, 47 L. R. A. (N. S.) 1149; L. & N. R. Co. v. Marlow, 169 Ky. 140, 183 S.W. 470; L. & N. R. Co. v. Schneider, 174 Ky. 730, 192 S.W. 834; Sage's Adm'r v. Creech Coal Co., 194 Ky. 418, 240 S.W. 42; Rabe v. C. & O. R. Co., 190 Ky. 255, 227 S.W. 166, 16 A. L. R. 1052; Jones v. I. C. R. Co., 104 S.W. 258, 31 Ky. Law Rep. 825, 13 L. R. A. (N. S.) 1066; Southern Ry. Co. v. Clark, 105 S.W. 384, 32 Ky. Law Rep. 69, 13 L. R. A. (N. S.) 1071; Brown's Adm'r v. L. & N. R. Co., 97 Ky. 228, 30 S.W. 639, 17 Ky. Law Rep. 145; I. C. R. Co. v. Tyson's Adm'r, 108 S.W. 863, 32 Ky. Law Rep. 1390; L. & N. R. Co. v. Wade, 36 S.W. 1125, 18 Ky. Law Rep. 549; I. C. R. Co. v. Pierce's Adm'x, 175 Ky. 488, 194 S.W. 534; Bales, Adm'r, v. L. & N. R. Co., 179 Ky. 207, 200 S.W. 471.

Formerly some distinction was drawn between active negligence and willful or wanton injury, but in the Sage Case, supra, they are explained as being practically synonymous. In the application of this rule recovery has been denied in the case of a licensee who was struck by a piece of iron falling from a passing train (L. & N. R. Co. v. Marlow, supra), to the complaint of the speed of a train by one walking along the tracks on Baxter Ave., in Louisville (Brown's Adm'r v. L. & N. R. Co., supra), and the same complaint by a licensee on side track who was sucked under the train ( L. & N. R. Co. v. Lawson, 161 Ky. 39, 170 S.W. 198, L. R. A. 1917B, 1161). Exceptions to this rule may be found where the injured party is on the premises of the company by invitation, express or implied, either on business with the company or as a passenger or employee. L. & N. R. Co. v. Schneider; L. & N. R. Co. v. Hobbs; L. & N. R. Co. v. Marlow, supra.

Also the rule has no reference to the duties of the enginemen at places where the tracks are habitually used by such large numbers of pedestrians as to require the trainmen to anticipate their presence. But no claim of that character is here made. Indeed, the appellant's counsel frankly concedes that no such condition exists, and with equal frankness admits that, if the intestate was a trespasser or a bare licensee, it was proper to sustain the demurrer. His contention is that it was the duty of appellee, as the landlord, to furnish a means of ingress and egress to the leased premises, and, as the only one furnished was over its tracks, this was an invitation to the tenant, his family and guests to use it, and that while so doing such persons were not bare licensees, but invitees, present as a matter of right, and as such entitled to the same protection and the same degree of care from the trainmen as are travelers on the public highway at railway intersections. He further argues that, as the tenant had kept papers for sale at his home for years, and as appellee knew he was selling same, this was an implied invitation to customers to travel over these tracks and in support of his position cites the case of McDermott v. N.Y. Cent. & H. R. R. Co., 28 Hun, 325. In that case the company had built and rented some houses that could be reached in no other way except by going upon the railway tracks. Deceased boarded with one of its tenants. In going out he was run over and killed by a backing engine operated without signals. In a suit for damages it undertook to defend on the theory that the passway should have been at a particular...