125 Ky. 49 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
In October, 1901, George Nipp was struck and instantly killed by one of appellant’s trains at a place known as the “Highland Stone Crasher,” in Carter county. A trial in the circuit court resulted in a verdict and judgment in favor of the appellee for $1,000, from which this appeal is prosecuted.'
The stone crusher is situated about 20 feet south of the main track on the inside of a sharp curve in the track east of Olive Hill and between that town and the summit of Corey Hill. There is a heavy downgrade from the top of Corey Hill by the rock crusher
Appellee rested their case upon the failure of the engineer to whistle for the road crossing, and upon this issue alone it was submitted to the jury; the court instructing the jury,’in substance, that it was the duty of the servants of appellant in charge of the train to give warning of its approach to the public
It is also earnestly insisted that sufficient evidence was not introduced by appellee to show a failure upon the part of the persons in charge of the train to give warning of its approach to the county road crossing, and that the court erred in instructing the jury upon this issue. The evidence touching this point is very conflicting. The weight of the affirmative evidence supports the theory that the usual and customary signals were given. On the other hand, a number of witnesses, who were in a position to hear the whistle if it had been sounded, testified that no whistle was sounded, or, if it was, that they did not hear it, although they could have heard the whistle if it had been sounded. In some jurisdictions it is held that affirmative evidence that a warning was given must be accepted as proof of that fact, although an equal or greater number of witnesses who were not listening especially for it testified that they did not hear the warning. Horn v. B. & O. Ry. Co., 54 Fed. 304, 4
The main issue we are called on to consider may be stated thus: For the appellant it is contended that Nipp was a trespasser, and that it owed him no duty
From a careful examination of the evidence, we have reached the conclusion that Nipp, at the time he was struck, was a trespasser upon the track, and therefore the only duty that appellant owed him was to exercise ordinary care to avoid injury to him after his position of peril was actually discovered. Smith’s Admr. v. Illinois Central R. Co., 90 S. W. 254, 28 Ky. Law Rep. 723; L., H. & St. L. R. Co. v. Jolly’s Admr., 90 S. W. 977, 28 Ky. Law Rep. 989; C. & O. Ry. Co. v. Barbour, 93 S. W. 24, 29 Ky. Law Rep. 339. There
Considering the instructions given by the trial judge, he was evidently of the opinion that there was sufficient evidence of such long continued use of the footpath, by the public as to impose upon appellant the duty of giving warning of the approach of its trains to this point, and that in crossing the track Nipp was a licensee, and not a trespasser. This question-we will proceed to examine. The evidence discloses that there is no station at the point where the rock crusher wias located, and that trains only stopped there under orders. Nor does it appear that there were any houses or other buildings nearby, except a store, and that persons in the neighborhood trading at the store used this footpath in. going from the pub-
It is therefore not material whether the train that killed Nipp gave the statutory or any signals- of its approach to the public crossing; nor does the speed at which the train was running enter into the case. Upon the facts presented by this record, the trial judge should have granted the request of appellant, and peremptorily instructed the jury to find for it.
Wherefore, the judgment is reversed, with directions for a new trial in conformity with this opinion.