102 Ky. 560 | Ky. Ct. App. | 1898
DELIVERED THE OPINION OF THE COURT.
This action was instituted by the appellee against the* appellant to recover for the killing of Fletcher .Dickerson by the appellant’s train of cars striking and so injuring-said Fletcher Dickerson as to' produce death in a short, time thereafter, in the petition it is alleged- that the killing was done carelessly and negligently. The answer denied all carelessness or negligence upon the part of the ap
'The reply of plaintiff denied all contributory negligence, and averred that after appellant discovered the presence «if the child upon the track, or after they could 'have dis- ; covered its presence upon the track by the exercise of ordinary care, they could have prevented the injury by the use •of ordinary care in stopping and impeding the speed of the .train, and averred that the injury was the result of gross .negligence upon the part of the appellant. Defendant’s de-■■.iaurrer to the reply was sustained'.
The proof conduces 'to show that the decedent was about two years and seven months old, and that when struck by the engine, he was standing so near the rail that the projection of the engine struck him and caused his death. The proof also conduces to show ihat there was a curve in the road about seven or eight hundred yards from where the child was struck, and that after passing that eurve the road was straight, and nothing to .obstruct the v/iew between the eurve and where the accident happened. It also' appears that the mother saw the smoke of the train as it approached, and then discovered the peril of-her child, and started ¡toward him, waving her hands and her hair streaming in the air, and that she reached the edge of the railroad, not many yards from where the child was struck, before it was struck by the train. It further appears that one Maynor was attracted by the screams of the mother, and ascertained the perilous condition of the child and attempted to rescue it, and got within a few feet of it before it was struck. The injury happened a short distance from a private crossing, and it is the contention of appellee that the child must have gone on the railroad at the crossing, and then walked along the ties to the place where it was struck; and there is some proof conducing to show, that owing to the nature of the fill and cinders, thát it could not have climbed upon the track at the place where the injury occurred.
The injury to decedent happened about 7 o’clock on a clear, bright morning. The train was perhaps an hour and a half late, and was running at the rate of 45 or 50 miles per hour.
It is the contention of appellant that the court erred in the admission of testimony, and also in refusing testimony offered, by the defendant; tending, as it is claimed, to show negligence upon the part of the parents of the child. We do not think, however, that the testimony was erroneously rejected. It could not properly have affected the verdict -n this case. The testimony introduced and complained pf was that immediately after the accident occurred the cond lector and some person in a working garb came back to where the injured party was, and that the conductor said: “Why, in the name of God, didn’t you see this in time to prevenir
It is earnestly insisted for the appellant that the decedent was a trespasser upon the track of the company, and that' unless the engineer did in fact see the child in time to have avoided the injury that the appellant was not liable, and that the court should have so instructed the jury, and that there was no evidence tending to show that the engineer or those in charge of the train did see the perilous condition of decedent in time to have averted the injury. A number of authorities are cited by appellant in support of its conten- ' tion, and it may be conceded that some of them taken alone or unexplained tend in some degree to support the conten» tion. It may, also, be conceded that the decedent had no legal right to be upon the track at that time and place; but the decedent, on account of its age, could not in fact and in law be an actual trespasser. If it be established that those in charge of the train, did not in fact see the child in time to have avoided the injury, the chief question for decision is whether or not the appellant is liable if in fact the agents in charge of the train, if they had looked along the track, could have seen the peril of the child in time to ha- e prevented the injury.
“So a railroad company should be held liable, if its employees in charge of its moving train see that a child, say two years old, is walking around it, and fail to look to its protection: although it may technically be a trespasser, and not at the moment in immediate danger. Their neglect to do so would be willful. A child without, discretion, although, a trespasser, occupies a legal attitude to the company s m-ilar to that of an adult, who is not a trespasser, save a greater (care Wr caution should be exercised to the former by reason of his helplessness.''
McDermott v. Ky. Central R. R. Co., 93 Ky., 408, was a suit to recover for an injury to a child of 8 years of age. In that case it seems .that the injured party was in fact where he had no right to be, but the court in discusssing the question said: “It results that the engineer of a mov-
The case of Cahill v. Cincinnati, &c. Railway Co. was an action for an injury to a party at a private crossing, where, however, it seems that the party had by some arrangement! a right to use as a crossing. One of the questions discussed in the opinion in that case was whether the failure) of the company to give the required signal at a public crossing was such negligence as to make the company liable for injury to a person at a private crossing. The court in that opinion said: “There being no statute of this State on the subject, nor for the reason mentioned no.decided weight of authority one way or 'the other, the question before us. must be determined according to reason and analogy of the law, as was the original question of the duty of railroad companies to give signals on highways and street crossings. Although it may be regarded an unreasonable hindrap.ce to the regular and prompt movement of trains, running out schedule time, to require their speed slackened and signals! given at every private crossing, however little used, it does not follow that the railroad company is exempt from any reasonable duty to (persons who lawfully go-,on its track at
In Conley’s Adm’r v. C., N. O. & T P. Ry. Co., 89 Ky., 402, etc., the court, in discussing the duty of the road, appellant’s intestate having been a trespasser, said: “We recognize and repeat the rule that the operators of a train are ordinarily uuder no obligation to look out for trespassers; that as a. rule they have the exclusive right to their track, and have a right to presume that no person will trespass upon it, and are, therefore, under no obligation to- look out for them. But tlhiis rule ias- to looking put for such persons has its exceptions, one of which is that, where the train is run through a city or town and the people thereof may cross the track at any and all hours at such points as may fee convenient, whether public or not, and the operators have treason to know that su-c'h is the habit, .it is their duty to look ou.t for such persons, and bake reasonable precaution not to run over them. In making approaches to- these places, or going through them, they are required not only to look out) but to ring the bell, etc., whether approaching a crossing or not. !Why so? It is for the purpose of seeing persons in time not to injure them, and Of warning them, whether trespassers or not, of the approach of -the train in order that they may get out of the way. 'This they are required to do even in the bright daytime.
It seems to us to be well settled by the decisions of this court that a railroad company is liable for injuries inflicted upon an infant of such tender years that it is incapable of having an intent or comprehending its rights or danger of injury, if such injury was the result of the failure upont ifhe part of those having charge of the train to discover his peril by the reason of their failure to use such ordinary care as their duty to the train and passengers require them to exercise in looking along the track of the road.
The decisions relied on. in support of appellant’s contention manifestly refer to adults, or persons of such mature years as to be justly held capable of knowingly committing trespass, and have no application to cases like the one at bar. It would seem that the action of the mother of the child, a.s detailed by the engineeer, would naturally have been notice to the engineer of some danger or obstruction
The instructions given conform to the views heretofore expressed, and therefore, were not prejudicial to the substantial rights of the appellant, and the instructions asked being in conflict with tibe opinion herein were properly refused.
Judgment affirmed.