135 Ky. 223 | Ky. Ct. App. | 1909
Opinion op the Court by Wm.
Reversing.
John Mulvey, as administrator of John Mnlvey, Jr., deceased, instituted this action against the Louisville & Nashville Railroad Company, the Chesapeake &
The facts are as follows: Appellant is the owner of a'bridge which spans the Ohio River at Covington, Ivy. It also owns and maintains railroad tracks running from Seventeenth street, in Covington, through said city and over said bridge to points in Cincinnati, Ohio. It has locomotives which it uses for the purpose of transportating trains over the bridge and roads owned by it. At Fifth and Johnson streets in Covington, Ky., there is a vacant and uninclosed lot, which has a frontage of about 50 feet on the south side of Fifth street, and a depth of about 100 feet. This lot is bounded on the west by a stone wall or approach to said bridge, and on the east by an alley. The top of the wall is about 10 feet above its base or the level of the lot. There are two tracks on this wall; the east track being used by trains going north, and the west track by those going south. This lot in question is owned by appellant. In the summer time it has been used as a playground by children. At times they would gather up the coal on the tracks and from
In discussing this case we may admit that there is some. evidence tending to show that young Mulvey was killed by being struck on the head by a lump of coal which fell from one of the cars as the train passed by. The doctrine of the Turntable Cases, of course, has no application to this case. This is not a case where a dangerous agency that was alluring and attractive to children was left in such a position that they could and would use it. Nor is it a case where the premises were rendered unsafe by a spring gun or any trap that would injure a person if he came in contact with it. Appellee, however, insists that, as children had been playing upon the lot in question for a long time with the knowledge and acquiescence of appellant, it was the duty of the latter to anticipate their presence, and so load its cars as not to injure any one of them. This court has gone to the' extent of holding that where a railroad track runs, through a populous community, along or across streets, where from the nature of things persons may be reasonably expected at any time, it is the duty of those in charge of the train to liave it under reasonable control, to keep a lookout for persons using the track, and to give timely warning of the approach óf the train. Illinois Central R. R. Co. v. Murphy’s Admr., 123 Ky. 787, 97 S. W. 729; 30 Ky. Law Rep. 93, 11 L. R. A. (N. S.) 352. The reason for this rule is that the long and continued use of the track at the
Judgment reversed and cause remanded for proceedings consistent with this opinion.