198 Ky. 390 | Ky. Ct. App. | 1923
Opinion op the Court by
Reversing.
At about 5:30 a. m. on February 11, 1916, R. B. Mc-Matb, while walking on or near the east-bound track of tbe appellant and defendant below, Chesapeake & Ohio Railway Company, was struck and killed by a manifest east-bound freight train at a point in Bracken county between nine hundred and one thousand feet west of the depot in the town of Foster, which is one of the sixth class and has a population of between one hundred and fifty and two hundred inhabitants. This action was filed by his administrator, the appellee herein, against the appellant and defendant company and its engineer in charge of the colliding train, to recover damages sustained by defendant’s estate on account of the loss of his life.
As a supporting ground for the action it was alleged in the petition that the accident occurred within the corporate limita of the town of Foster and that the track upon which decedent was killed “had been continuously used by pedestrians since the construction of the railroad and was being so used by a large number of persons as a passway at the time the said R. B. McMath was struck and killed,” which fact was known to the defendant, and that they failed to observe the necessary precautionary duties due to the decedent while exercising
While the verdict was in favor of plaintiff and was sufficient in form to authorize a judgment against both defendants, none was rendered against the engineer and individual defendant although he appears in this record as a party appellant. Under those circumstances the attempted appeal as to him should be and it is dismissed. The railway company, against whom only a judgment was pronounced, urges but one ground for its reversal, which is that the court erred in overruling' its motion for a peremptory instruction in its favor at the close of plaintiff’s testimony and in refusing to sustain the same motion made at the close of all the testimony, the determination of which requiresi a brief statement of the substance of the proof.
The town of Foster is located on the Ohio river and its southern and western boundary is Holt’s creek which the track of the defendant company crosses about eighteen hundred feet west of the depot in Foster. Between the depot and where that creek runs under the track are only two houses that are located near the track and only one of them faces or fronts it; the other one is located on a road or street which it fronts and is about two hundred and fifty feet from the track. Further to the south and west from the depot and between Grraee and Prible streets, are some four or half dozen houses but they are located a considerable distance from the railroad and near the creek, and between them and the railroad are other roads or streets. Decedent’s dwelling, which he had left but a short while before his death, is still further away and west of the point where the railroad track crosses the creek. About three miles west from his dwelling is the small village of Carntown, and between it and decedent’s residence is only one house. Some four or five farm houses are located back from and south of the river and south of the railroad track
The testimony of the administrator, who is a brother of decedent and lived with him, as well as some of the other witnesses he introduced, testified that the persons who occupied the farm houses would on occasions, and particularly during times of high water, go through the adjoining farms to the railroad track and walk it to the town of Foster, and under the same circumstances some of the children in those houses would travel along the track in going to school, but the same witnesses say that on other and more numerous occasions the occupants of those houses would travel the road into Foster. .Some of the witnesses testifying for plaintiff, when interrogated as to the .amount of travel on the track, would say: “It was considerable” or “A good many people travel that way,” and, as in a number of cases cited below, they employed other general terms expressing in an indefinite way the witnesses’ idea of the extent of the travel; but when called on to give the average number of trips .per day made by persons using the track as a walk way at the point of the accident the administrator testified, “I expect that there would be fifty or seventy-five people go over it during the day.” He was further asked and answered, “You mean there would be fifty or seventy-five trips; not fifty or seventy-five people? A. I mean trips.” Mrs. McMath, the widow of decedent, testified to no definite number of people using the track, but said that members of her family and the people living over the hill south from the river, including in all seven families, were the ones who used the track mostly, Helen McMath, decedent’s daughter, was asked: “Q. In your judgment, would you is ay, as many as twenty-five people a day” (would use the track) ? She answered, “I have some days; not every day.” Lee Boutt testified that some days he would not see more than five or six persons walking the track and upon being asked: “Q. What would you say would be the average number of people you would see on the tracks at the time you were at the station?” He answered, “Twenty, more or less, every day,” and when asked the extent of the travel by pedestrians of the track between Faster and Camtown, he answered, “Well, it wasn’t crowded.” Jesse Slack was asked: “Q. How many people a day in your judg-'
Each of the witnesses referred to was introduced by and testified for plaintiff, and their testimony was all that was heard upon the subject. From the testimony, as we have taken it from the record, it appears that the highest number of trips per day by pedestrians on the track at the place of the accident was placed at seventy-five by the administrator, and down to as low as four by some of the other witnesses. No witness besides plaintiff himself placed the number higher than fifty persons. Some of those witnesses testified that occasionally one or two persons from Carntown, but not exceeding upon an average once in- each two weeks, would travel the track between that point and Poster, and it was furthermore shown that at appropriate seasons of the year there was some travelling of the track by the disciples of Isaac Walton in going to the mouth of Holt’s creek, and the witnesses said that there was more travelling on the track on -Sunday than any other day of the week.
Under the above condition of the proof it is seriously insisted by counsel for plaintiff that the case is one calling for the application of the doctrine announced in the cases of Illinois Central R. R. Co. v. Murphy’s Admr., 123 Ky. 787, and a host of others following it and some preceding it, and that the court did not err iu overruling defendant’s motion for a peremptory instruction in its
The rule, as there laid down, was expressly referred to and followed by this court in the ease of McKnight’s Admr. v. L. & N. R. R. Co., 168 Ky. 86, and in a number of succeeding ones, the latest of which is L. & N. R. R. Co. v. Stidham’s Admrx., 194 Ky. 220. In the McKnight and Stidham cases others from this- court are referred to which it is unnecessary to even cite much lesis incorporate their facts in this opinion. Other illustrative and pertinent ones from this court are: L. & N. R. R. Co. v. Redman’s Admr., 122 Ky. 392; C. & O. Ry. Co. v. Nipp’s Admr., 125 Ky. 49; Cumberland R. R. Co. v. Walton, 166 Ky. 371; Watson’s Admr. v. C. & O. Ry. Co., 170 Ky. 254; Helton’s Admr. v. C. & O. Ry. Co. 157 Ky, 380; Sublett’s Admr. v. Same, 146 Ky. 530, and Howard v. I. C. R. R. Co., 189 Ky. 60. The accident occurred in some of those cases within the corporate limits of a town, but the court said that the application or rejection of the-doctrine should be made to turn, not upon the fact-that the accident occurred within or without the limits of an incorporated town, but upon the fact of the extent of the use of the track by members of the public in populous communities, upon the idea that extensive use at such places wa,s sufficient to give notice of that fact to the company and to impose the corresponding precautionary duties upon it, its agents and servants. Throughout the eases in which the question has been presented it is stated that the use of the track by the members of a family or a few families was not sufficient to raise the duty on the part of the defendant to exercise the re
But it is insisted that the railroad track where decedent was killed occupies what was formerly Front street in the town, and because of that fact that it was the duty of defendants in operating the train at that point to exercise due care and caution for the safety of those who might be using that portion of the track, and •some cases are cited in support of that contention. Without stopping to consider them, or to determine whether the doctrine there announced should be applied under the proven facts, it is sufficient to say that the ground, upon which the contention is based is not sustained by
Wherefore, the judgment is reversed with directions to_ set' aside the verdict, and upon another trial to sustain the motion if the evidence is substantially the same, and for other proceedings consistent with this opinion.