89 Ky. 402 | Ky. Ct. App. | 1889
delivered the opinion op the court.
The appellant, as administrator of Ed. Conley, sued the appellee in two counts for killing his intestate— one for willful, the other for gross and ordinary neglect. There is no allegation in either count of the petition that the intestate left either widow or child; besides, the proof shows that he left neither; therefore, according to the repeated decisions of this court recently rendered, the appellant can not recover on the count for willful neglect. The only question is, does certain evidence, as it appears in the record, if believed, authorize the appellant to recover for ordinary or gross neglect? Let us see. The appellant’s intestate was killed almost immediately at Burgin depot, Mercer county, Kentucky, by the rear part of the appellee’s stock train No. 10 running over him on January the 8th, 1883, about seven o’clock at night.
On behalf of the appellant, the evidence shows that while the said train was coming south, about seven o’clock at night, it being very dark, and a drizzling rain falling, said train was cut in two, probably about three-fourths of a mile from Burgin depot, and the front part of the train was drawn by the engine at a more rapid rate until it passed Burgin depot, and
It may be that the deceased was run over and killed while he was on the track, eithér walking on it or crossing it, not at a point where he had the legal right to be. If this be so, he was, technically, a trespasser, and only technically a trespasser. So the question is, did the fact that he was, technically, a trespasser, excuse the appellee, if the deceased was killed under the circumstances contended for by the appellant ?
According to the appellant’s contention, the appellee, having uncoupled its train on a dark night, without a light in front to warn persons, having occasion to be on the track, of its approach; without a lookout to warn
We recognize and repeat the rule, that the operators of a train are, ordinarily, under no obligation to look out for trespassers; that, as a rule, they have the exclusive right to their track, and have the right to presume that no person will trespass upon it, and are, therefore, under no obligation to look out for them. But this rule, as to looking out for such persons, has
But the case here, according to the appellant’s facts, is, that of the appellee having turned its rear cars loose, unlighted in front, and, therefore, not under con-trol, so far, at least, as to render any ’assistance,- the night being dark, in case of a collision with any person that might be on the track. The cars being separated from the engine, their approach would be, at least as •compared with the ordinary movement of trains, almost noiseless, and not likely to be heard or noticed; also, ■on a dark night, and, in the absence of a light to arrest the attention, their approach would not, ordinarily, be •observed until too late to get out of the way. It is a
So the question is, is the turning these cars loose, under the circumstances, such a departure from a manifest duty toward the local public as to entitle the appellant to recover for the injury inflicted on his intestate by reason of such departure, although the intestate was, at the time, a technical trespasser upon-•the track?
The rule applicable to actions for the negligence of the defendant is, that if the negligence of the plaintiff so far contributed to the injury as that the injury would, not have occurred but for such contributory negligence, he can not recover, is as well settled as any principle of law. But is it applicable to a case where the negligence on the one side consists of a technical trespass,, as the one in this case, and a failure to perform a manifest duty, as in this case ? The omission to do, or the doing, any thing that is the manifest duty of a person to do, or not to do, does not entitle such person to immunity from liability in damages to the person injured thereby, simply because such person was a mere trespasser, and but for which the injury would not have-occurred. Where the injury is the result of the nonperformance or a violation, however innocent of intention, of a plain and manifest duty for the protection of.
Humanity positively forbids the owner of property that is dangerous to human life and safety to knowingly turning snch property loose, even upon his own ground, where it will do mischief, even to a technical trespasser. Such conduct is regarded as utterly at war with the principles of humanity and as smacking of savagery. That the party hurt was a mere trespasser, and, otherwise than in this legal aspect, perfectly 'innocent and harmless, does not excuse the person that injured him by means manifestly injurious to human life and safety. By being technically a trespasser he does not forfeit all right to protection. This fact is
The judgment is reversed, witk directions to grant a new trial, and for further proceedings consistent witk. this opinion.