116 Ky. 900 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
The appellant, J. M. Craddock, as administrator of Isaac Goodman, deceased, brought this suit to' recover damages for the death of his intestate. The petition alleges that “on the 27th day.of August, 1901, the defendant, its agents and servants, negligently and carelessly ran one of its freight trains over the body of the said Isaac Goodman, inflicting- upon him injuries which instantly resulted in his death.” Defendant, the Louisville & Nashville Railroad Company, denied the alleged negligence, and in a second paragraph pleaded that the death of the plaintiff’s intestate was the direct result of its' own contributory negligence. The reply was a traverse of the plea of contributory negligence. The trial in the circuit court resulted in a peremptory instruction to find for the defendant and a judgment dismissing the action, from which this appeal is prosecuted.
It is complained that the trial court erred in the peremptory instruction, and also in rejecting competent evidence
That case was decided upon the ground that the testimony was sufficient to have authorized the belief that defendant’s agents saw the children upon the bridge in ample time to have avoided injuring them, but negligently failed to take the necessary steps to do so, under the belief that the children upon the bridge had time to have crossed over before the arrival of the train. The appellant also cites the case of the C., N. O. & T. P. R. R. Co. v. Dickerson’s Adm’r (102 Ky., 560; 19 R. 1817) 44 S. W. 99, as authority for the contention that a higher degree of care is required for railroad companies where the trespassers upon their tracks are infants of tender years than where such trespassers are adults. In that case a little girl, two years of age, was playing upon the railroad track; and, while the engineer'testified that he did not see her until he was within 20 feet of her, and too late to avoid the injury, he admitted that he saw the mother of the child running towards the track, waving her hands,her hair streaming in the air, apparently greatly excited. It also appeared that there was a straight track and nothing to obstruct the
It is also complained that the tidal court erred in refusing to permit the plaintiff to prove that the railroad at the point where deceased was killed'had been, with the knowledge of the company, used as a footway by pedestrians for many years, and that for this reason deceased could not be regarded as a trespasser. The testimony shows that the railroad is fenced on both sides, and is enclosed by iron cattle guards at the two crossings. Besides, the point where the accident occurred was in a deep cut. There was no claim that the company had ever authorized the use of their roadbed at this point as a footway, and the mere occasional passage of unauthorized pedestrians at this point with the knowledge of the company was not sufficient to convert a trespasser into a licensee, or to change Lhe degree of care due by the railroad company. Upon the whole case we have reached the conclusion that there was no ¡evidence of negligence on the part of those in charge of the train, and that the trial court did not err in its peremptory instruction,
Judgment affirmed.