54 S.W.2d 361 | Ky. Ct. App. | 1932
Affirming.
The sole question on this appeal is whether the trial court, at the conclusion of the evidence offered by appellant, properly directed a verdict in favor of appellees.
On July 30, 1929, George Coleman was struck and instantly killed by a west-bound Chesapeake Ohio passenger train just east of Harold Station, in Floyd county. East of the place of the accident there is a curve in the track and also a sloping hillside. Frank Marrs, who ran the pumping station, which is east of Harold Station, testified that shortly before the accident Coleman was running down the track, and asked if the train stopped at the water tank. He replied that it did not, and Coleman, who had not come to a halt, continued to run down the main line track between the *30 rails. He also told Coleman that he had time to make the train, but did not know whether Coleman heard him or not. About that time the train was approaching, and the alarm whistle was sounded. Coleman had ample time to get off the track after the alarm was given. As the train passed, it was making the usual noise. The train was a little ahead of time. Coleman never looked back. Looking down the track, he saw a crowd gathering, and on going down there discovered Coleman's body, which was lying about six rail lengths, or a distance of 216 feet, below the pumphouse. W.T. Shelow was the fireman on the engine. As the train was going around the curve, he cut off the steam, and they were just coasting in. He was keeping a lookout, and had his eyes on the track as they came around the curve. When he first saw Coleman, Coleman was running down the track in front of the train, and was about 150 to 200 feet, ahead of the engine. Coleman had his coat under his arm, and never looked back. The train was running between 20 and 25 miles an hour. He was always looking at the track, and saw Coleman just as soon as he could see him. As soon as he saw Coleman, he warned the engineer, who immediately applied the emergency brakes, sanded the track, and sounded the usual warning signals. The train could have been stopped in from 400 to 500 feet. Ballard Morris, who had had 10 years' experience as a passenger brakeman, expressed the opinion that a train, consisting of six cars and an engine, and moving from 20 to 25 miles an hour, could have been stopped in 250 feet. W.J. Ward, civil engineer, made a map of the grounds and gave it as his opinion that any one on a railway engine at the whistle post above the pumphouse could see from that place to the point where Coleman was killed a distance of 610 feet. He also measured the distance from where Coleman was killed down to the water tank, and found it to be 310 feet.
At the time of the accident Coleman was a trespasser, and those in charge of the engine owed him no duty except to use ordinary care with the means at their command to avoid injuring him after his peril was discovered. Louisville N. R. Co. v. Benke's Adm'r,
Judgment affirmed. *32