148 Ky. 178 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
George Williams was struck and instantly Mlled by a freight car while standing on a side-track of the appellant at Preston, Ky. This action was brought by his administrator to recover damages for his death, and resulted in a verdict and judgment against the appellant for $2,500.00; and to reverse that judgment the railroad company prosecutes this appeal. ,
On November 5, 1910, there was an empty ear standing on the house track near the east end of the station, and attached to it were two hopper-bottom gondola cars, from which coal was being uploaded.. A short time before the accident Williams was seen leaving Johnson’s grist mill in the neighborhood, carrying a .sack of meal on his shoulder. After the accident this meal was found in a barn about 150 yards from the mill. He was next seen standing on this north or house track about six feet west of the empty car above mentioned, and opposite the entrance of the station talking with Clint and Beuben Wilhoit, where he remained from ten to fifteen minutes. In the meantime appellant’s local freight train was switching cars, and discharging freight. It became necessary to move the empty oar and the two gondola cars in order to get other cars on the track; but before they moved these cars it was found that a few bushels of coal had been let out of'the bottom of one of the hopper-bottom cars and remained under the car on the track; and two negro wprkmen had been sent under the car to remove it. While they were thus at work, Lowman, ap
Appellee based his right to recover upon the alleged negligence of Lowman, the brakeman, and Dennis, the engineer of the freight train, in suddenly pushing the freight car upon Williams without giving him any signal or notice, whereby he could have saved himself from the impending danger. Quite a good deal of testimony was introduced by the appellee tending to show it was the custom of the people having business at the station to cross the north switch or house track, as it is called, immediately opposite the station and that a pass-way had become established over the track at that point for the use of the public. The appellant denied
In examining the testimony, therefore, we should bear in mind the well established' mile 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. Fugate vs. City of Somerset, 16 Ky. L. R., 807; Miller vs. Metropolitan Life Ins. Co., 28 Ky. L. R., 225; and Southern Railway Co. in Kentucky vs. Goddard, 121 Ky., 577.
There is very little conflict in the testimony in this case; on the contrary, the facts are comparatively few, and well established. It clearly appears from the testimony introduced by appellee that Reuben and Clint Wilhoit and Williams, who were standing together , and talking to each other, had warning of the intention of the engineer fo back the car, which resulted in Williams’ death. Reuben Wilhoit, Clint Wilhoit and Shultz, all of whom were indifferent witnesses, and not in the employ of the appellant, say that Shultz gave them the warning. It is true the Wilhoits say they did not hear the warning called out by Lowman; nevertheless, they had the warning which was originally given by Lowman and repeated to them by Shultz. Not only does Shultz say he repeated Lowman’s warning, but the fact that Shultz gave the warning to the Wilhoits and Williams strongly corroborates Lowman’s testimony that he had called out the warning in the first place, since it is not probable that Shultz would have given the warning on his -own motion, and in advance of the movement of the car. If the warning thus originally given by Lowman reached Williams through the agency of Shultz, its' effect was the same as though it had been given directly by Lowman to Williams. It is not necessary that Williams should have received the warning directly from the brakeman. The question to be determined is: “Did he have warning such as the law provides must be given him in such case?”
Furthermore, it is clearly apparent from the evidence, not only that Williams did have sufficient warn
Furthermore, Lowman was standing only about 26 feet distant when he gave the warning that the cars were about to back-up; and, although he could not see the Wilhoits and Williams, who were standing behind the car and close to it, it is entirely probable that they could have heard his warning, as Shultz heard it, if they had not been engrossed in their own conversation. Wood, a section foreman, Thomas a section employee, and Reed, one of the men who was assisting in unloading the coal, all testify that they heard Lowman call out the warning that he, was going to back up, before the engine started the cars. So, the alleged negligence of appellant is not only rebutted by the appellee’s own testimony but it'is shown beyond a doubt, and without any contradiction, that due warning was given to Williams of the approach of the train. It is not negligence to fail to- give warning of the approach of ¡a train to one who knows it is coming. I. C. R. R. Co. v. Willis’ Admr., 123 Ky., 637. There is no conflict in the -evidence upon the point that warning was gfven in due time by Shultz; and, that being true, it must follow that Williams’ death was -due. solely to his. own negligence. The law requires a man crossing tracks at a public crossing to -exercise proper care to learn of the approach of trains and keep -out of their way. L. & N. R. R. Co. v. Cummins’ Admr., 111 Ky., 336; Southern Railway Co. v. Winchester, 127 Ky., 153. And, certainly as high a degree of care is required of one standing for ten or fifteen minutes upon a track, in the full light of day and within six feet of a freight car, in a yard where the ears are liable, to be moved at any time. In absolute disregard of this duty, as is shown by the testimony of Shultz and the two Wilhoits, Williams stood upon the track talking, which was in itself an act of negligence under the circumstances, without making any effort whatever to ascertain or guard
Judgment reversed, and cause remanded for a new trial.