Wimsatt's Adm'x v. Louisville & N. R. Co.

• Decision Date: 27 May 1930
• Citation: 235 Ky. 405,31 S.W.2d 729
• Parties: WIMSATT'S ADM'X v. LOUISVILLE & N. R. CO. et al.
• Court: Kentucky Court of Appeals

31 S.W.2d 729

235 Ky. 405

WIMSATT'S ADM'X v. LOUISVILLE & N. R. CO. et al.

Court of Appeals of Kentucky

May 27, 1930

Rehearing Denied Nov. 11, 1930.

Appeal from Circuit Court, Ohio County.

Suit by the administratrix of the estate of Ray Wimsatt, deceased against the Louisville & Nashville Railroad Company and others. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Barnes & Smith, Gilmore Keown, and Heavrin & Martin, all of Hartford, for appellant.

Kirk &amp Bartlett, of Hartford, Glover H. Cary, of Owensboro, and Ashby M. Warren, of Louisville, for appellees.

LOGAN J.

Appellant instituted suit against the Louisville & Nashville Railroad Company, John Whitsell, its engineer, and Moreland Burns, its fireman, in charge of its train at the time of the accident alleging that the corporation and the individuals mentioned, through their joint and concurring negligence and carelessness in the management, operation, and control of the engine and train described in the petition ran upon and over Ray Wimsatt, so injuring him that he was then and there killed as the direct and proximate result of the alleged negligence.

The answer denied negligence on the part of appellees and pleaded contributory negligence and assumption of risk on the part of appellant's intestate.

At the conclusion of the evidence offered by appellant, the trial court instructed the jury to return a verdict in favor of appellees, and the propriety of the ruling of the court is called in question by this appeal.

The pleadings and the proof show that the right of appellant to recover is based upon the last clear chance doctrine. At the time of the death of the intestate, he was a trespasser upon the railroad track in a thinly populated community where no lookout duty was imposed upon appellees. Appellees relied upon their affirmative defense, or rather their two affirmative defenses, that, as decedent was a trespasser upon the railroad track, he assumed the risk of injury, and that he was guilty of the only negligence which resulted in his death.

The accident occurred in Ohio county on a line of the appellee railroad company running from Ellmitch in Ohio county to Madisonville in Hopkins county. The date of the accident was April 23, 1929. The train that caused the death of Ray Wimsatt was what is known as a mixed train; that is, it carried both freight and passengers. The accident happened about 2 o'clock in the afternoon, or a few minutes before. The day was bright, and the sun was shining. About two miles east of Hartford there is a cut through which the railroad passes, known as Mitchell's cut. Near the west end of the cut a small creek passes under the line of railroad and is crossed on a short trestle. Westward from the cut is a level straight track for a distance of more than 1,500 feet.

Ray Wimsatt was a young man 34 years of age, the husband of appellant, who sues as his administratrix. He was subject to heart attacks, which came upon him unexpectedly and at times rendered him unconscious. He left his home on the morning of the accident, going to Hartford. He walked on the right of way, as was the custom of the residents in that neighborhood. Having completed his errands in Hartford, he started walking on the railroad track towards his home, and when he had journeyed about two miles presumably, from the evidence, he had a heart attack which caused him to fall on the railroad track lengthwise between the rails. No one saw him fall, and there is some testimony that a broken bottle was found near the body apparently having contained whisky. The mixed train came out of Mitchell's cut more than 1,500 feet distant from where the body of Wimsatt was lying on the track. The train ran upon and over his body. The speed of the train was not more than 30 miles an hour. It was stopped after the engine, the tender, and two other cars had passed over his body. There were only four or five passengers on the train at the time of the accident. One of them was the drainage commissioner of Ohio county, who was going to his office in Hartford, another was a resident of Dundee, a little station on the railroad, while another was a traveling salesman, and another was a small boy.

The deposition of John Whitsell, the engineer, was taken as if on cross-examination; it was read. He testified that he did not see the man on the track until he was within four car lengths of him, and that immediately upon the discovery of the man he did everything that could be done to stop the train, and he enumerated each movement and step that he took for that purpose. He was evasive in his answers, and made a very poor witness. Many of the questions were answered by the simple statement that he did not know, when the matters inquired about were such as must have been within his knowledge, if not the exact information, that which was sufficiently approximate. No signal was given of the approach of the train after the discovery of the man on the track. If he was unconscious, as was indicated by his prone position on the track, a signal would have proven unavailing, but there is no one who testified that he was unconscious, although the inference that such was the case is probably conclusive.

The most important question for determination is whether those in charge of the train discovered the peril of Wimsatt in time to have avoided injuring him by the exercise of ordinary care. If there was evidence that the peril was discovered in time to have avoided the injury by the exercise of ordinary care, the case was one for the jury, but, if there was no evidence to that effect, the court was right in taking the case from the consideration of the jury. It was not sufficient to show that the track was level and straight, and that the peril of Wimsatt could have been discovered by maintaining a lookout as he was a trespasser and no lookout duty was imposed upon those in charge of the train. Under the circumstances, it is a question of whether there was an actual discovery of Wimsatt in time to have avoided the injury by the exercise of ordinary care. The rule was so stated in the case of Davis et al. v. Crawford's Administratrix, 203 Ky. 71, 261 S.W. 835, where it was said that no principle of law is better settled than that one sitting or lying upon a railroad track is held to be a trespasser and that those in charge of a train owe him no duty except to use ordinary care to protect him from injury after discovering his peril. Again in the case of Lee's Adm'r v. Hines, 202 Ky. 240, 259 S.W. 338, it was stated that the duty which the law imposes upon railroad companies in favor of licensees will not be extended so as to include persons sitting or lying upon the ties or tracks. The duty referred to was that of maintaining a lookout, giving warning signals, and keeping the train under control. Our opinions go so far as to hold that a person who sits or prostrates himself upon a railroad track, although he be in a place where persons are licensed to use the track, is in no better position than a trespasser, and that those in charge of a railroad train are only required to use ordinary care to protect him from injury after discovering his peril. It was so held in the case of Bevin's Adm'r v. C. & O. Ry. Co. et al., 190 Ky. 501, 227 S.W. 794. The cases are collected in that opinion in which it has been so held.

Even where those in charge of a train see an object on the track which they do not at the time recognize as a human being, the rule seems to be that the duty to stop the train does not devolve upon its operators until they discover that the object upon the track is a human being.

This was so held in the case of Spiegle v. C., N. O. & T. P. Ry. Co., 170 Ky. 285, 185 S.W. 1138, 1140. It was pointed out in that opinion that it had been held in other jurisdictions that it is the duty of an engineer in charge of a train, when he sees an object upon the track in time to stop the train before reaching it, to slacken his speed and approach the object with the train under control so that it may be stopped in time to prevent injury if it turns out that the object is a human being. But, in commenting on that rule in other jurisdictions, this court said: "This, however, is not the rule in this state, as it has been repeatedly held by this court that, where trainmen discover an object upon or dangerously near the track and cannot tell what it is and there is nothing in the surroundings to impose the duty upon them to know what it is, the defendant does not have to check the speed of the train and proceed upon the assumption that the object may be a human being."

In the late case of Louisville & N. R. R. Co. v. Ison's Adm'r, 216 Ky. 708, 288 S.W. 668, 669, the evidence showed that the engineer saw an object on the track that afterwards proved to be a man. He could not tell what the object was, and, after he saw it, he was debating in his mind whether it was a hog or dog or some other object. He did not blow the whistle, or ring the bell or apply the brakes in an effort to stop the train until after the engine had run over the object he had seen. The court there said: "The rule is firmly established in this jurisdiction that, where trainmen discover an object upon or dangerously near the track and cannot tell what it is, and there is nothing in the surroundings to impose the duty upon them to know what it is, the defendant does not have to check the speed of the train, and proceed upon the assumption that the object may be a human being."

In the case of Cincinnati, N. O. & T. P. Ry. Co. v Reynolds' Adm'r, 102 S.W. 888, 31 Ky. Law Rep. 529, the fireman testified that he and the engineer first saw the object on the track as the engine came over a hill about a half mile...