132 Ky. 445 | Ky. Ct. App. | 1909
Harry Harrod was a brakeman in the employ of the Southern Railway Company. The latter company and appellant railway company use the same yard tracks for switching at Georgetown. In the month of February, 1904, early in the morning, about 6 o ’clock, Harrod and others of the crew in charge of a Southern train were shifting cars on these tracks at Georgetown, in which they had occasion to nse the main track of the appellant road. There wias a through passenger train dne on appellant’s road passing from the sonth through Georgetown at 6:19 a. m. It was known as No. 4. For that train Georgetown was a flag station at Which the train did not stop, unless it was signaled to do so for accommodation of through passengers to or from that point. On this morning in question that train was behind time. Harrod was sent to the station to learn what time it would' he due in order that he and others of bis crew might govern their actions by tbe information, so as to keep ont of the way. He returned, and reported that it was 30 minutes late; that it would go through Georgetown at 6:50 a. m. His crew then went ahead with their work, clearing appellant’s main track some minutes prior to 6:50‘ a. m., so as to leave that track free for the passenger train. But they had other switching to do in its immediate vicinity, which they proceeded with. Harrod was operating the switch, and giving signals to the engine man of his train as to its movements. The switch was on a track parallel to appellant’s main track and some nine feet distant from it. The siding on which defendant’s train was operating in part had a curve, so that the engineer in charge of his engine when it was some distance to the south could not easily see one giving the signal from the switch if given
The first question is: Should there have been a peremptory instruction, upon appellant’s motion, to find for it? Harrod was rightfully using the tracks of the yard at Georgetown. He had the same right there, and was, we apprehend, under the same obligations as to when and how he should use them as if in appellant’s employ. A great deal of the evidence admitted bore upon the situation of certain crossings in the vicinity of the accident, and of the population of Georgetown, the location of the depots, and so forth. The theory of appellee’s case was that, if. the situation was such as required certain signals of warning to be given by moving trains at or near that point, appellee’s intestate was entitled to rely upon their being given, and, if they were not given, it was negligence as to him. In addition, and in the same line, appellee contends that the situation required a modified rate of speed to be maintained at or near that point by passing trains, so as to avoid injuring people who had a right to be at or near that point on the appellant’s tracks, and whose presence therefore must have been anticipated and provided against, Further stating the facts so as to get at the exact question here presented: The main track which No. 4 was using, coming from the south, was for nearly half a mile south of the Georgetown station, perfectly straight, and nearly level, though for most of the way it passed through a out. Harrod was killed about 500 feet south of the passenger station. Immediately south of the passenger station, or say 450 feet north' of where Harrod was struck, was appellant’s freight
Railroad owners may be, and in many instances are, under entirely different standards of duty toward their own employes' and the public. This difference is not based at all upon any different regard of the law for these two sets of people; for in the .eyes of the law' the lives and safety of one is as much desired as the other. But the difference rests upon a sound distinction. In the one case there is no assumption of risks — there is no consideration for any. In the other there is. Not that the latter bargain away their safety at all, but they know that the very work about which they are engaged is inherently hazardous, and as ordinarily conducted, even with the best of appliances, is fraught with great and imminent danger to life. They know better than anybody else the necessity for keeping in safe places where such are "provided, so that passing trains cannot injure them. They know the custom of railroads in
We .do not mean to say that the passenger train operatives owed no duty to those rightfully using the yards. We think they did. Having notice that freight crews of their own employer, and of other roads in considerable .number did use these yards, they must keep a lookout for them, and must give warning of the approach of the train. They were doing both is the unoontradicted evidence. Those in charge of the engine- were keeping a lookout ahead, and the bell of that engine was ringing. It Was not reasonable that, in addition, the engine should have kept up a constant or intermittent whistling as it passed through the city. It was not customary; on the contrary, it probably would have constituted a public nuisance by doing so. Besides, if all engines passing through that yard should have kept up such whistling, the din would have resulted, most probably, in defeating the very purpose which it was designed to serve.
If Harrod had been a section workman in the yards at Georgetown, his case would not have- been less than it is. Seetionmen work in railroad yards, as Well as in the country, at all time’s, and may reasonably be expected1 there at any time. They must be aware of the time of the running of the trains over the track on which they are at work. Even though those in charge of a fast train knew they were working at that point, or might reasonably be expected to be working there, they also knew it was their duty to maintain a clear track for that train, and to themselves keep out of its way, as they well could. Would- the speed of the train, even though negligence to the passengers or licensees, have been negligence as to them? We think not, and it would make no difference whether they were in the yards at Georgetown, at Kincaid, or in the country where there was no station; for it must always be borne in mind that negligence toward a person is the antithesis of a duty owing to that person. But the facts of this case carry
Prom whatever point the facts are viewed, we are unable to say that appellant failed in any duty it owed the decedent. His lamentable death, due no d'oubt to his aberration of the moment, coupled with the precautions he had taken from the cold, and the usual noises of his own train, drowning to his ears the ringing of the bell on tbe approaching engine, was not attributable to any want of legal care which the appellant owed to him.
Other questions presented are not passed upon. Being of the opinion that the peremptory instruction should have been awarded upon the- appellant’s motion, tbe cross-appeal is affirmed, and the judgment upon the principal appeal is reversed, and cause remanded for a new trial under proceedings not inconristent herewith.