203 Ky. 273 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
This is an appeal from a judgment for $3,000.00 for personal injuries.
According to appellee, he had been to Lynch to visit a friend and was -on his way back to Benham. Finding that he had lost his pipe, he turned back. When he .reached a point about sixty yards above the coke ovens of the Wisconsin Steel Company, he heard a train which had approached without warning. As he turned toward the train, it struck him and knocked him -off the track causing an injury which necessitated the amputation of his arm.
We have carefully examined the record, and have reached the conclusion that the evidence was sufficient to make it a question for the jury whether the railroad tracks at the place of the accident were habitually used by the public in such large numbers as to impose on the company the duty of anticipating their presence there and of taking precautionary measures for their protection.
The court did not err in permitting the witnesses to-give the population of Lynch and Benham. The two towns are practically contiguous, and the' number of
While appellee was on the stand, he was shown a written statement to which he had fixed his mark in the presence of Alexander Szabo, H. L. Bryant and Dr. W. E. Riley. In this statement he said: “A friend was with me and he stopped and I walked on down the track, and down below the coke ovens I sat down on the ends of the ties to wait for my friends, and I was smoking. I don’t know whether I was asleep or awake, and the first thing I knew was that the train struck me.” Appellee admitted that he made the mark, but claimed that that was all that he knew about it, and that he did not make to the interpreter the statements contained in the writing. After he admitted signing the paper by making his mark, appellant offered the paper in evidence, but an objection to its admission was sustained. This was error. When appellee admitted making his mark to the paper, the effect was the same as if he had admitted signing his name to the paper, and the paper should have been admitted in evidence, subject to any explanation that he cared to make. Furthermore, as the paper contained a statement to the effect that appellee was sitting on the ends of the ties at the time of the accident, which was an admission against interest, it was admissible not only for the purpose of impeachment, but as substantive evidence.
Aside from the statement in the paper that appellee was sitting down when the accident occurred, the testimony of the engineer was to the same effect. In view of this evidence, appellant 'offered the following instruction which the court refused to give:
‘ ‘ The court instructs the jury that if the plaintiff was sitting, lying or stooped on or over the track at the time he was struck by the train, and his danger was not discovered by the engineer or by those in charge of the train in time to have stopped the train and avoid the injury, the law is for the defendant and the jury should so find.”
It is the settled rule in this state that one who sits or lies down on a railroad track, even though at a place where the presence of persons should be anticipated, is
Though instruction No. 1 has been approved in certain cases, it is the better practice to make the precautionary duties depend on whether the track at the place of the accident was habitually used by the public in such large numbers that the presence of persons on the track should be anticipated, rather than on its habituad use by the public without regard to their number. Cornett’s Admr. v. L. & N. R. R. Co., supra,
.Judgment .reversed and cause remanded for a new trial consistent with tMs opinion.