Southern Ry. Co. in Kentucky v. Clark

• Decision Date: 20 November 1907
• Citation: 105 S.W. 384
• Parties: SOUTHERN RY. CO. IN KENTUCKY v. CLARK.
• Court: Kentucky Court of Appeals

105 S.W. 384

SOUTHERN RY. CO. IN KENTUCKY v. CLARK.

Court of Appeals of Kentucky.

November 20, 1907

Appeal from Circuit Court, Anderson County.

"Not to be officially reported."

Action by R. T. Clark against the Southern Railway Company in Kentucky. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Humphrey & Humphrey and Willis & Todd, for appellant.

Charles Carroll and W. H. Morgan, for appellee.

LASSING J.

On the 22d day of January, 1907, appellee went from his home to Avenstoke, a small village in Anderson county, about 10 miles west of Lawrenceburg, and in doing so had to cross the tracks of appellant company. He reached the village shortly after 6 o'clock, went to the post office, and, having received his mail, started to return to his home. When he reached appellant's track the road was blocked by a freight train. He saw a brakeman with a railroad lantern in his hand standing on the opposite side of the train, and he inquired of him how long they were going to be there, and the brakeman answered 15 or 20 minutes, and asked him if he wanted to cross over, and, upon being told that he did, the brakeman said, "Are you in a buggy or wagon?" and, being informed that he was "footback," the brakeman said "You got plenty of time; come right through; you will be safe," and the brakeman thereupon swung his lantern and walked away, and he attempted to climb in between the cars his heel caught between the bumpers, and he was injured. To recover for this injury he filed his suit in the Anderson circuit court against appellant, alleging that appellant permitted its freight train to stand and remain on and across the public road, and while so standing he, with the full knowledge and consent and by the direction of the defendant and its agents and employés in charge of the train, attempted to cross the public road between the cars, and that while so doing without any notice to him the train was suddenly moved, and that by reason of this carelessness and negligence on the part of those in charge of the train he was injured. The defendant company answered, traversing the allegations of the petition and pleading contributory negligence. On the issue thus joined a trial was had, which resulted in a verdict in favor of appellee, and the company prosecutes this appeal.

Appellant insists that the evidence shows that there was no negligence whatever on the part of the company, and that a peremptory instruction should have been given at the close of plaintiff's testimony, and, further, that the proof shows that appellee was guilty of such contributory negligence as should prevent a recovery. There is nothing in the evidence to show that any one in charge of appellant's train knew or by the exercise of the highest degree of care could have known, that appellee was between the cars when the train was started. It is true that appellee says that the person to whom he spoke was a brakeman; but he says, further, in his testimony, that his reason for presuming that he was a brakeman was because he carried a railroad lantern. He testified, further, however, that at the time that he attempted to cross between the cars this individual had moved away toward the station and was not present; nor does he state that he notified the man with the lantern that he contemplated taking his advice and attempting to cross over. Giving appellee the full benefit of his testimony, and conceding that the person to whom he was talking was a brakeman, yet the company would not be liable because of the invitation of the brakeman to appellee to cross over; for it has been expressly held in the case of Skirvin v. L. & N. R. R., 100 S.W. 308, 30 Ky. Law Rep. 1208, that a brakeman has not the power by virtue simply of his position to bind his employer, but that the conductor is the representative agent of the company as to the train in his charge, so that, when appellee undertook to pass over or between the cars, he was a trespasser, and the company owed him no consideration until his peril was discovered. There is no proof whatever in the record tending to show that even the brakeman, much less the other agents of the company in charge of the train, knew that appellee was attempting to pass over between the cars. Appellee and the appellant company had an equal right to the use of the public road at the...