Southern Ry. Co. in Kentucky v. Sanders

• Decision Date: 05 December 1911
• Citation: 145 Ky. 679,141 S.W. 77
• Parties: SOUTHERN RY. CO. IN KENTUCKY v. SANDERS.
• Court: Kentucky Court of Appeals

141 S.W. 77

145 Ky. 679

SOUTHERN RY. CO. IN KENTUCKY v. SANDERS.

Court of Appeals of Kentucky.

December 5, 1911

Appeal from Circuit Court, Anderson County.

Action by J. M. Sanders against the Southern Railway Company in Kentucky. From a judgment for plaintiff, defendant appeals. Reversed for new trial.

Willis Todd & Bond, for appellant.

Edwards Ogden & Peak, for appellee.

CARROLL J.

On March 5, 1910, the appellee, Sanders, went to Lawrenceburg from Lexington about 6.30 p. m., for the purpose of leaving there for his home on a Danville train that left Lawrenceburg about 10.30 p. m. When he reached Lawrenceburg, he was under the influence of liquor, and while in Lawrenceburg waiting for his train continued drinking, with the result that he became very much intoxicated. About 9 o'clock that evening he went to the depot to wait for his train to come in, and while there walked across a passing track and a house track situated at the back of the depot, for the purpose, as he says, of going to a water-closet. On his return from the water-closet to the depot, a little after 9 o'clock, his foot was caught between the rails at the point of a switch that had been left open for the purpose of permitting an engine and tender to back from the side track onto the house track, and while his foot was so fastened the tender of the engine ran upon it, injuring it to such an extent that it became necessary to amputate the foot. To recover damages for the injuries thus sustained, he brought this action against the company, and upon a trial before a jury recovered a verdict for a substantial sum. Upon this appeal by the company, from a judgment entered upon a verdict, the principal contention of counsel for the appellant is that the trial court erred in refusing to sustain a motion for a peremptory instruction made at the conclusion of the evidence for the appellee. It is also insisted that the court erred in the instructions given to the jury.

The water-closet to which appellee testified he went and from which he was returning when injured is situated some distance from the depot on property of the company and in what may be called its yards at Lawrenceburg. This water-closet had been abandoned by the company and securely closed several months before the accident to appellee, and there is no evidence that at this time it was used by any person. Indeed, there was no reason why it should be used, as the company maintained at the time of the accident and for some years before a well-appointed water-closet in its depot building. Why appellee should have gone to this abandoned water-closet is not apparent, as it is fair to assume that he knew it was not in use, and also knew that the company maintained one in its depot building, because he testifies that he had been about the depot as much as 50 different times before he was injured. It is said, however, that, although it may not have been necessary for appellee to go to this water-closet yet he had the right to cross the tracks at the place he was injured, and whatever his purpose was the company owned him the duty of giving warning of the approach of its engine, and keeping a lookout to discover his presence and prevent injury to him. This argument is based upon the theory that the tracks and place at the point where appellee was injured were used by the public generally in going from Court street to Woodford street, and in passing in and about the depot premises. Upon this point the railway company did not introduce any evidence, but witnesses in behalf of appellee testified that there was a great deal of travel by the public across these tracks and in the yards of the company especially by persons who wanted to take a short cut from one of these streets to the other, and in going to and from a lumber yard situated in the vicinity. But, in what we may call the yards, where the house track and other tracks were located, there was no sidewalk or regular traveled way, nor were any lights maintained there at night for the use or benefit of the public. The evidence does not show that these premises were used at all by the public after night, and considering their location, condition, and surroundings, there is nothing in the record from which we can reasonably infer that the public was in the habit of using them at night. In view of this use of the premises, we will consider later in the opinion the rights and liabilities of pedestrians and the railway company at the time of night appellee was injured.

The testimony of appellee that relates immediately to the time of the accident is as follows: "Q. When did you first discover the train approaching, if you did discover one? A. After I got on the track. Q. How far was it from you? A. Probably 20 or 30 feet; I couldn't say just exactly what distance. Q. Can you say now to the jury what composed the train that was approaching you? A. No, sir; I can't say. Q. Do you know how fast it was approaching? A. I don't expect it would have taken it more than five minutes to run a mile. Q. Who, if any employé, was on the rear end of that train? A. No one. Q. Was there any light? A. No light at all. Q. Was the bell being rung or whistle sounded? A. No whistle was ever blowed; if it was, I didn't hear it. Q. Did you have any notice whatever of the approach of the train before you observed it a few feet from you? A. No, sir. Q. Then what occurred when you discovered it? A. When I discovered the approach of the train, I was going on the track, and I started on across, and I hung my foot in there. Q. In what? A. In the switch. Q. Between the rails? A. Yes, sir; between the two rails. Q. What did you do then? A. When I hung my foot in the track, I began to holler, and as quick as I fell I tried to pull loose. Q. Trying to get your foot out of the track? A. Certainly. Q. What else were you doing as you made an effort to extricate yourself? A. Only trying to get loose. Q. Did you holler? A. Yes, sir; I hollered about twice before the train struck me. Q. How long after you got your foot in there before the train struck you? A. In about a quarter of a minute. Q. How much of the train passed, if any, over your foot? A. One wheel passed clear over it, and the other passed in a manner over it. Q. Do you know who was the first person that reached you? A. A man that had a light. Q. Had you seen that light before you fell? A. No, sir. Q. Was that light in front of the approaching train or at the rear? A. No, sir; that light came down from up towards the engine, and came up to me. I was turned with my face toward the engine."

The evidence of the appellant company is, in substance, that the house track switch had been opened for the purpose of letting the engine and tender back from its main siding onto the house track to get two cars that were standing on the house track close to the point where it connected with the siding; that the engine, which was in charge of the fireman, was running about three miles an hour; that the brakeman who accompanied the engine for the purpose of coupling the tender to the cars had gotten off the engine and was running on the engineer's side of the track with a lantern in his hand a few feet ahead of the tender as the engine backed, at the time and before appellee was injured; that, when he discovered appellee, he at once signaled the engineer to stop, which he did almost immediately. The engineer testifies that the engine was backing about three miles an hour, and that the brake man was running a few feet ahead of the engine, and that when the brakeman gave the stop signal he applied at once the emergency brake, and the engine did not move over two feet after the brake was applied. He further testified that an engine and tender running three miles an hour could be stopped in two feet. That the engine bell was ringing is proved by several witnesses, and not denied by appellee or any other person.

It will be observed that appellee testifies that when he discovered the approach of the engine, which he says was backing at the rate of about 12 miles an hour, he was going on the track, and that in attempting to cross his foot was caught in the switch rail. Aside from the fact that the engine bell was ringing, he knew that the engine was approaching, and only a few feet away when he started across the track. Why he took the foolish and dangerous risk of attempting to cross the track in front of a moving engine that he knew was only a few feet away cannot be explained except on the theory that in his intoxicated condition he did not appreciate the danger in which he voluntarily placed himself. Probably if his foot had not been caught he would have escaped; but there can be little doubt that appellee was extremely reckless in undertaking to cross the track at the time he did.

But however this may be, if he is to be treated as a trespasser, the motion for a peremptory instruction to find for the company should have been sustained because the company only owed him the duty of exercising ordinary care to protect him after his presence on the track was actually discovered, and the evidence is conclusive that the trainmen did everything that could have been done to avoid the injury after his peril became known. If, however, appellee is not to be treated as a trespasser, but as a licensee, and the company owned him a lookout duty, there is enough in the record to take the case...