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

• Citation: 122 S.W. 154
• Parties: WICKHAM'S ADM'R v. LOUISVILLE & N. R. CO.
• Decision Date: 10 November 1909
• Court: Court of Appeals of Kentucky

122 S.W. 154

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

Court of Appeals of Kentucky.

November 10, 1909

Appeal from Circuit Court, Spencer County.

"To be officially reported."

Action by John Wickham's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for defendant plaintiff appeals. Affirmed.

Reasor & Crume, Edwards, Ogden & Peak, and Peak & Holland, for appellant.

Luther C. Willis and Benjamin D. Warfield, for appellee.

CLAY C.

Appellant J. W. Crume, as administrator of John Wickham, instituted this action against appellee, Louisville & Nashville Railroad Company, to recover damages for the destruction of the life of John Wickham. At the conclusion of all the testimony the court awarded appellee a peremptory instruction.

The deceased, John Wickham, was killed on April 29, 1908. At the time of his death he was 53 years of age. He was then in the employ of appellee in its South Louisville yards as day watchman, and had been working in that capacity for about six months. He was earning $40 per month. His duties as watchman were to protect the property of appellant in its yard at the point where he was stationed, and to see that school children and other trespassers were kept off the track and not injured by passing trains. The deceased was killed in Highland Park an incorporated town of about 2,000 inhabitants. Highland Park is situated about one-half mile south of the southern limits of the city of Louisville. Its principal thoroughfare is Ottawa street, which crosses the tracks of appellee about 150 feet north of the station at Highland Park, about 680 feet south of the "FX" tower, and about 700 feet south of the point where decedent was killed. At the "FX" tower, the point near which decedent lost his life, appellee had three tracks, namely: North Main, South Main, and "Drill track." Just north of the "FX" tower the tracks became numerous and constitute appellee's yards; there being 12 tracks in all. There is a street on each side of the yards, one on the east and one on the west, running north from Ottawa street. They run for a short distance only. At the place where decedent was killed, appellee's right of way was about 80 feet wide. There was proof tending to show that a number of persons passed across the track at this point. Appellant was struck by train No. 4, which is a fast passenger train running between Nashville and Cincinnati. It was due at the "FX" tower just north of Highland Park at 8:43 a. m. It was on time on the morning of April 29, 1908. It was then running between 25 and 30 miles an hour. Its speed was a little less than its usual rate. Just prior to the accident the decedent was in the tower house talking to one Harry Barker. In the presence of decedent, and at a time when decedent was close enough to hear, Mr. Daniels, the tower operator, told Barker that No. 4 was approaching. Barker and decedent then left the tower house. Train No. 4 did not stop at the tower house. When it arrived it gave the usual signals of its approach by blowing the whistle and continually ringing the bell. The decedent went to a point between North Main track, that on which No. 4 was running, and track No. 1. At that time he was in a safe place. These tracks were about 10 feet apart. He then walked a distance of about 25 feet between these two tracks until he got where the switch target was located. As decedent approached the switch target, the yard engine was coming toward the switch target with a number of freight cars attached, and was making the usual and customary noises incident to a moving freight train. When decedent reached the switch target, he turned to pass between it and the North Main track. This brought him in dangerous proximity to train No. 4, which was then passing. Up to that time he had been in a safe place. When he attempted to step between the switch target and the North Main track, train No. 4 was right on him, and he was struck by the engine and killed.

It is not charged that there was any negligence in failing to give the usual, customary, and timely warning of the approach of the train. It is not alleged that those in charge of the train saw, or by the exercise of ordinary care could have seen, decedent in time to avoid injuring him. The only negligence relied upon is the speed of the train. To sustain this contention it is argued that it was shown that there was a customary use by the public of appellee's tracks at that point, and, as the accident happened in an incorporated town, appellee should have run its train with reference to the presence of such persons, and that it was negligence on its part to pass that point at a speed of 25 or 30 miles an hour. In considering this question, it must be remembered that there was some evidence tending to show that decedent had actual notice of the approaching train. Whether this be true or not, it is certainly true that decedent was employed to keep trespassers on the tracks from being injured. He had been employed as watchman for six months. It was his duty to know the time of the arrival and departure of trains at that point. What, then, was the duty of appellee towards decedent?

In the case of Conniff v. L. H. & St. L. Ry. Co., 124 Ky 763, 99...