Welch v. Louisville & N.R. Co.

• Decision Date: 24 February 1915
• Citation: 163 Ky. 100,173 S.W. 338
• Parties: WELCH v. LOUISVILLE & N. R. CO. ET AL.
• Court: Kentucky Court of Appeals

173 S.W. 338

163 Ky. 100

WELCH v. LOUISVILLE & N. R. CO. ET AL.

Court of Appeals of Kentucky.

February 24, 1915

Appeal from Circuit Court, Bell County.

Action by Ada Welch against the Louisville & Nashville Railroad Company and another. From a judgment for defendants plaintiff appeals. Affirmed.

J. M Gilbert and J. J. Tye, both of Pineville, for appellant.

Benjamin D. Warfield and Chas. H. Moorman, both of Louisville, and Chas. W. Metcalf, of Pineville, for appellees.

CLAY C.

In this action for damages for personal injuries, the trial court directed a verdict in favor of the defendant, and the plaintiff appeals.

The facts are these: The Louisville & Nashville Railroad operates a line extending from Pineville up Straight creek to some coal mines six or eight miles distant. Plaintiff lived on this line about two miles from Pineville. Between 4 and 5 o'clock on December 1, 1913, she was going from Pineville to her home. She was traveling along the right of way. The section hands that had charge of the section of the road extending from Pineville up Straight creek lived up Straight creek. After their day's work was done, it was customary for them to ride home on a hand car. On the afternoon in question, the members of the section crew were on the hand car proceeding up Straight creek. While proceeding on their way, a passenger train passed them. The members of the crew knew that this train and an engine used by the Continental Coal Corporation were above them, and would return that evening. In front of the hand car was a push car loaded with supplies. Shortly after passing the plaintiff, the Continental Coal Corporation engine, which was running about 50 miles an hour, ran into the hand car and push car and wrecked them. The wreck occurred in a cut. On the side of the track is an embankment some five feet high. Beyond the embankment is a public road running parallel with the track. When plaintiff saw the members of the section crew fleeing from the hand car, she ran towards the embankment. She claims to have been struck on the back of the head by a dipper, and elsewhere on her body by the débris from the wreck. There was evidence to the effect that it was customary for the section crew, before reaching the place where the wreck occurred, to send out a flagman to protect the hand car from approaching trains. On the occasion in question, the foreman did not do this, although his attention was called to the necessity therefor. It does appear, however, that, shortly after passing plaintiff, the foreman took the flag and ran forward to flag the engine. He was too late, however, to avoid the wreck. At the time she was injured, plaintiff was standing on the edge of the bank, down next to the dirt road.

The accident in question happened in the country. It was not alleged or proved that defendant's right of way at the place of accident was used by the public in such large numbers as to impose on the defendant the duty of anticipating the presence of persons on the track, and therefore of taking precautionary methods to avoid injuring them. In the absence of allegation and proof to the contrary it must be assumed that plaintiff was a mere trespasser.

While it may be that defendants' servants failed to exercise ordinary care in order to prevent the collision in question such failure cannot be regarded as negligence, so far as plaintiff is concerned. Actionable negligence consists in the failure to exercise that degree of care towards plaintiff which was due her by the defendants under the circumstances. In the absence of duty, there can be no negligence. It is the settled rule in this state that the only duty owing to a trespasser is to exercise ordinary care to avoid injuring him after his peril is discovered. A railroad company is not under the duty of flagging its trains in order to avoid injuring a trespasser, unless reasonably necessary to avoid injuring him after his peril is discovered. Thomas v. C. N. O. & T. P. Ry. Co., 127 Ky. 159, 105 S.W. 379, 32 Ky. Law Rep. 67; L. & N. R. R. Co. v. Wade,...