148 Ky. 279 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
Fuqua., the fireman, corroborates Ware in the essential features of his testimony, and further says that Montjoy not only looked back twice while riding, but looked back once after he had gotten off the tricycle at the station; and that he could easily, after the alarm began sounding at the trestle six hundred feet away, have placed himself beyond danger. Eoberts, the telegraph operator, was sitting at the window in his office in the station, and looking up when he heard the danger signal, saw the tricycle coming down the track ahead of the train; and when Montjoy reached the window, Eoberts called to him as loud as he could to jump off. Eoberts also says that instead of leaving the track, Montjoy got off in the middle of the track, and made no effort to get his wheel from the track. Eoberts further says he saw Montjoy look back twice as he came down the track, and once just as he got off the tricycle. According to the engineer’s testimony, the speed of the train had been reduced to eight miles an hour when Montjoy was struck in front of the station, and the engine ran only about seventy-five or eighty feet, or about the length of one car, after the accident.
John Staten was standing in the door of Copher’s store, about fifty feet east of the station, when Montjoy passed, and called to Montjoy three times to get off his wheel. Montjoy evidently heard Staten’s call, for he turned and looked at Staten, but kept going. Mrs. Case corroborates the statements made by the other witnesses about Montjoy’s looking at the train, and says he had gotten off when he was struck, and looked back over his left shoulder and saw the train coming — that he kept looking back all the time.
Just before Montjoy had transferred his tricycle to the main track at the junction one-half mile east of the station, Wells, who was traveling horseback, crossed the railroad at that point on the county road, and proceeded down the county road alongside of the railroad track
Appellant denied the negligence charged against it, and relied upon Montjoy’s negligence as a bar to any recovery. There was considerable evidence to the effect that Montjoy was under the influence of liquor.
Upon a trial the jury awarded the plaintiff a majority verdict for $1,999, and from '¡a judgment upon that verdict the railroad company appeals.
Appellant insists that its motion for a peremptory instruction to find for the defendant should have been sustained; but, when we consider the facts developed in this case, in connection with the well established rule that a peremptory instruction for the defendant is proper only when, after admitting every fact proven by plaintiff’s evidence to be true, as well as all reasonable inferences that can be drawn therefrom, the plaintiff has failed to establish his case, we must conclude that the ruling of the Circuit Judge, in the respect, was correct. C. & O. Ry. Co. v. Williams’ Admr., 148 Ky., 178.
While it must be conceded that Montjoy was a trespasser upon áppellant’s track, and guilty of the grossest negligence in thus racing with' the express train, it was nevertheless the duty of appellant’s servants to use all reasonable means, at their command, to avoid injuring Montjoy, after they had discovered his peril.
The rule was stated in Dilas’ Admr. v. C. & O. Ry. Co., 24 Ky. L. R., 1349; 71 S. W., 492, as follows:
“The law is well settled in this State by numerous decisions of this court, that as to persons who are tres*283 passers upon its track, a railroad company can only Tbe held liable in damages for injuries inflicted by its trains, where it is shown that the danger to the injured party was discovered in time for the injury to have been avoided by the exercise of reasonable or ordinary care on the part of those in charge of the train In addition to the cases above indicated, the following may be cited in support of the doctrine announced, viz.: Haskins’ Admr. v. L. & N. R. R. Co., 17 Ky. L. R., 78; L. & N. R. R. Co. v. Wade, 18 Ky. L. R., 549, and L. & N. R. R. Co. v. Tinkham’s Admr., 19 Ky. L. R., 1784.”
And. in L. H. & St. L. Ry. Co. v. Jolly’s Admr., 28 Ky. L. R., 991; 90 S. W., 977, where the controlling facts were quite similar to the facts of the case at bar, we defined Jolly’s duty in these words:
“And however this may be, when he took the tricycle out on the railroad track it was incumbent on him to keep out of the way of the train. It was not incumbent on the railroad company to keep a lookout for him at places where the presence of persons on the track was not to be anticipated, and it owed him no duty until his presence on the track was discovered by those in charge of the train. (Dilas’ Admr. v. C. & O. Ry. Co., 24 Ky. L. R., 1347; Jacob’s Admr. v. C. & O. Ry. Co., 24 Ky. L. R., 1879.)”
And, of the engineer’s duty to Jolly, we said:
“The engineer owed the intestate no duty until his presence on the track was discovered. The engineer was under no obligation to look out for him. When the engineer came around the curve and saw the section men along the track, naturally his eye would be upon them to see if they were safe or were giving any signals, and not until he passed them in glancing along the track would he naturally see the man on the tricycle beyond. The company is not liable if he might have seen Jolly in time to have saved him. It is only liable if he might have saved him by proper care after he in fact saw him. ’ ’
It was appellant’s duty to do everything within its power to prevent the accident after it had discovered Montjoy’s peril; and since there is evidence tending to show that appellant’s train increased its speed as it passed the tool house three hundred feet from the point of the accident, and did not, therefore, do its whole duty in the premises, the case was properly submitted to the jury. \
Finally, appellant insists that the Circuit Judge erred in giving instruction No. 1, which reads as follows:
“If the jury believe from the evidence in this case that Jas. Montjoy at the time he was injured and killed was upon the defendant’s railroad track in Bath county, Kentucky, and its agents in charge of the engine and train which injured and killed him negligently failed to ring the bell or sound the whistle or slacken the speed of the train or failed to stop the train after they discovered his peril they will find for plaintiff such compensa! ory damages, if any, as the plaintiff has sustained as the direct and natural cause of said negligence and killing, not to exceed the sum of one thousnd nine hundred and ninetv-nine ($1,999.00) dollars, the amount claimed; unless you believe from the evidence that James Mont-joy by his own negligence contributed to such an extent to the injury and killing that but for his negligence' it would not have happened. In that event the plaintiff can not recover unless defendant company’s agents who were in charge of the engine and train knew of his peril in which his negligence had placed him 'and thereafter-failed to observe ordinary care to avoid the injury and killing which followed.”
This instruction was erroneous and misleading in several respects. It put an absolute liability upon appellant in case its engineer either negligently failed to ring the bell, or sound the whistle, or slacken the speed of the train, or failed to stop the train after he discovered Montjoy’s peril. But, as there is no contradiction in the proof 'that Montjoy saw the train in ample time to get off the track, a failure to ring the bell or to sound the whistle, in no way brought about Montjoy’s death. Furthermore, the instruction erroneously placed upon the engineer the absolute duty of stopping the train after he discovered Montjoy’s peril, regardless of the engineer’s ability to so stop the train. In lieu of instructions Nos. 1 and 5, the court will, upon a retrial of the case, give the following instructions:
2. But, unless the jury believe from the evidence that after the discovery of Montjoy’s peril, the engineer failed to use. ordinary care in the exercise of all reasonable means at his command to avoid injury to him, consistent with the safety of the train, and by reason of such failure Montjoy lost his life, the jury should find for the defendant.
3. The engineer of the train had the right to assume that Montjoy would use ordinary care for his own safety, and he was only required to take such precautions to avoid injury to Montjoy as might be reasonably expected of a man of ordinary prudence, situated as he was, and acting on this assumption.
C. & O. R. R. Co. v. Lang, 135 Ky., 76.
For the error in the instructions, the judgment is reversed, and the case remanded for a new trial.