Thomas' Adm'R v. C. & O. Ry. Co.

• Citation: 245 Ky. 352
• Parties: Thomas' Adm'r v. Chesapeake & O.R. Co.
• Decision Date: 10 May 1932
• Court: United States State Supreme Court (Kentucky)

Page 352

245 Ky. 352

Thomas' Adm'r v. Chesapeake & O.R. Co.

Court of Appeals of Kentucky.

Decided May 10, 1932.

1. Railroads. — That place of accident on tracks is within town will not alone obligate railroad to keep lookout and give warning.

2. Railroads. — If place of accident is in municipality where trainmen may expect that persons will be on tracks, railroad must keep lookout.

3. Railroads. — If public frequently uses tracks as footway with railroad's acquiescence, persons on tracks, who should be anticipated, are licensees, and trainmen must keep lookout and use ordinary care.

The railroad owes the duty stated, and is liable for injuries inflicted on such licensees unless they were, at the moment the injury or death was suffered, simultaneously engaged in trespassing or violating a statute.

4. Railroads. — To trespasser violating statute by boarding moving train, railroad owes no duty until trainmen discover peril (Ky. Stats. sec. 805).

5. Railroads. — Where deceased, having boarded moving train, consummated trespass and returned to pathway habitually traveled by public within municipality, railroad owed him duty owed general public (Ky. Stat., sec. 805).

Since deceased was no longer a trespasser, but occupied position of licensee when so using pathway in question, railroad owed him, as a member of general public same duty which it owed any other member thereof, i.e., duty to keep lookout and give reasonable warnings of movement of its trains when approaching pathway, and to run them at such speed and in such manner as to be under control of trainmen, as ordinary care for his safety required, even though deceased at or prior to time when he was struck by train was at railroad depot with intention and for purpose of stealing a ride.

Appeal from Boyd Circuit Court.

WAUGH & HOWERTON for appellant.

BROWNING & DAVIS for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

This appeal presents for consideration the propriety of the ruling of the trial court in giving to the jury, at the close of the evidence in behalf of the appellant, a peremptory instruction, directing it to find a verdict for the appellee.

James Thomas, a young man twenty years of age, and Sparrel Lowe, a boy sixteen years of age, in August, 1928, resided at Mossy Bottom, Pike county, Ky. They each equipped themselves with a suitcase, in which they carried their convenient wearing apparel, and left home intending to obtain employment, and to view and experience the world of a larger horizon than was observable from their native surroundings, which are frequently the ambition of the youth of the countryside. On reaching the railroad, "without let or hindrance," they boarded a passing freight train and rode in to Russell, thence to Ashland, Ky. Not finding work at either of these places, on the morning of the 8th of August, they rode a street car to Catlettsburg. They left the street car at Division street, Catlettsburg, on which the railroad depot was located. They went to the depot, walked up the railroad and stopped at the toolhouse of the Chesapeake & Ohio Railroad Company. A short distance from, and in sight of, it, the city was constructing a street. They approached the contractor in charge of the work, and asked for employment, which was refused. They crossed the railroad tracks, returned to and sat down by the toolhouse, rested, and ate their dinner, which they had obtained at an establishment across the street. While at the toolhouse, a freight train of the Chesapeake & Ohio Railroad Company approached them, going east toward Huntington, W. Va., running on the south or east-bound track, or the track furtherest from the toolhouse. James Thomas left his suitcase, caught one of the coal cars of a freight train, hung to the stirrup and rode on it east, a distance of approximately 125 to 150 feet, when he jumped off and walked over onto the west-bound track, and there started walking back down it toward the toolhouse. As he went from the point where he alighted from the freight train he walked on the outer edge of the ties, with his face toward the west. After so walking a distance of about 65 feet, a passenger train coming from the east struck and killed him. At that time the freight train was still passing on the east-bound track. A curve was in the track a short distance east of where he was killed. At the time he alighted from the freight train, the passenger train was not in sight. No signal or warning of any kind was given by it. The freight train on which Thomas rode the distance we have stated, was the first train which passed the toolhouse after Thomas and Lowe's arrival at the depot. The passenger train which struck the deceased was traveling at a high rate of speed, approximately 45 miles an hour. The place of the accident was within the corporate limits of Catlettsburg, and at a place on the tracks where the public generally and habitually were accustomed to travel and to cross the railroad tracks. Neither before nor at the time the deceased boarded the freight train did he make any statement to his companion of his intention or purpose in so doing. When he got on the freight train he left his grip setting at the toolhouse, where he and his companion had been sitting. The appellant appeals from a judgment entered in conformity with a verdict of the jury, returned in accordance with a peremptory instruction.

The appellee urges that the deceased and Lowe were on the railroad's premises for the purpose of stealing a ride on one of its trains; that deceased had actually boarded the first train going east, but that he got off only because it was going too fast for his companion to get on with the suitcases, and that the accident was the direct result of an actual trespass on its property.

The appellee contends that the licensee doctrine is not applicable in this case, for the reason the deceased had actually committed a trespass by boarding one of its freight trains while in motion, and was present on its premises with the avowed intention of stealing a ride on some one of its trains; that therefore his estate cannot invoke the protection of the authority and right of a licensee to use the walkway, for the purpose of a recovery herein. To sustain its contention, it cites section 805, Ky. Statutes; McQuary v. L. & N.R.R. Co. (Ky.) 128 S.W. 329; Louisville & N.R.R. Co. v. Philpot's Adm'r, 215 Ky. 682, 286 S.W. 1078; Cornett's Adm'r v. L. & N.R.R. Co., 181 Ky. 132, 203 S. W. 1054; Louisville & N.R.R. Co. v. Smith's Adm'r, 186 Ky. 32, 216 S.W. 1063; Bevin's Adm'r v. C. & O. R.R. Co., 190 Ky. 501, 227 S.W. 794; Lee's Adm'r v. Hines, 202 Ky. 240, 259 S.W. 338; Davis v. Crawford's Adm'x, 203 Ky. 61, 261 S.W. 835; Southern Ry. Co. v. Clark, 105 S.W. 384, 32 Ky. Law Rep. 69, 13 L.R.A. (N.S.) 1071; Illinois Cent. Ry. Co. v. Cotter, 103 S.W. 279, 31 Ky. Law Rep. 679; Kentucky H.R. Co. v. Creal, 166 Ky. 469, 179 S.W. 417, L.R.A. 1916B, 830, Ann. Cas. 1917C, 1205; Freeman's Notes, 48 Am. Dec. 636.

In McQuary v. L. & N.R.R. Co., the plaintiff was picking up coal from under a car in defendant's yard at a point about 30 feet distant from a pathway which for many years past had been daily used by many persons going to and from the mills and factories and the Union Depot to the east and other parts of the city of Henderson, when defendant's switch engine and train, without giving warning signals, run over him, crushing and mangling his arm so that it had to be amputated. The trial court sustained a demurrer to the petition. Its...