108 Ky. 561 | Ky. Ct. App. | 1900
Opinion of the court by
Reversing.
The appellant, Robert Gunn, an infant about thirteen years of age, sat down upon the ties near to the rail on the right of way of the appellee, in its track yard in or near the city of Danville. Being at the time suffering from headache, he suddenly fell asleep, and 'fell over upon the railroad track of defendant, with his arm extending on or across the rail upon said track, and while so asleep one of defendant’s engines, which was being backed into the yard, or along the track, ran over and upon said Gunn, and mashed and bruised his arm so that it had to be amputated between the elbow and shoulder, and otherwise injured him. To recover $2,000 damages therefor he instituted this action against the defendant.
The first paragraph of the answer denies any injury to the appellant by any negligence or carelessness. It is also denied that any injury or suffering inflicted upon the plaintiff could have been avoided by the use of ordinary care or any care at all upon the part of defendant. In the second paragraph it is alleged that the injury to the plaintiff was caused by reason of his own negligence, and but for such negligence the injury would not have occurred. In the third paragraph it is alleged that at the time the injury occurred plaintiff was guilty of negligence on his own part which contributed to the injury, and but for which negligence the injury would not have occurred. The affirmative matters of the answer were traversed by reply. A trial resulted in a verdict and judgment for the
The grounds relied on for a new trial are as follows: Because the verdict is contrary to the law and evidence) error of the court in refusing to give instructions “a/’ “b,” “c,” and “d,” asked by plaintiff; error of the court in giving instruction No. 1; error of the court in refusing testimony; error of the court in instructing the jury.
The evidence of the plaintiff introduced conduced to show that while the engine and tender were being backed n rthward toward the mill that a brakeman was on what was then the front end of the engine, and that the fireman and engineer were also aboard, and that the brakeman discovered the danger of the plaintiff, and hallooed, to him to get up from there, and also signaled several times to the engineer to stop or slow down the engine, which was for a time disregarded by the engineer, and that if the engineer had responded to the signals of the brakeman he could have stopped the engine before it ran over plaintiff. The testimony, also tended to show that, if those in charge of the engine had used ordinary care in looking, they could have discovered the peril of the plaintiff at a distance of at least 150 yards, and therefore could have easily avoided the injury. The testimony of defendant, however tends to showT that the peril of plaintiff was not discovered in time to have avoided the injury, and that the same could not have been done by the exercise of ordinary care, and further tends to show that plaintiff was in the railroad yard of defendant where he had no right to be; hence was, as contended by defendant, a trespasser. The appellant offered to prove that the place at which plaintiff was injured was inside the corporate limits of the town, of Danville, and at a point where great numbers
It may be conceded that, under repeated decisions of this court, plaintiff was where he had no right to be. But if that point was within a city or town, and where the defendant had a right to expect people would be traveling or passing, it became the duty of the defendant to be on the lookout, and use ordinary care to protect persons so crossing or being upon the track from injury. This court has repeatedly decided that such duty is required of railroad companies. In John’s Adm’r v. Railroad Co., (Ky.), 10 S. W., 417, it is said: “The right of a railroad company to the use of its track is exclusive of the public, save where the public has a right to cross or use it, or where its use in a reckless manner would necessarily endanger the lives of those whose nearness to it requires the exercise of care and caution. In passing through a town or city greater care must be exercised than upon a portiou of the road where persons have no license to be. In the first case those in charge of the train must be upon the lookout for persons, and must by the usual signals give warning of its approach; while in the latter they are not bound to anticipate their presence, and guard against injury to them, but must, when made aware of their peril, avoid the injury by the exercise of all reasonable means.” In Railroad Co. v. Howard’s Adm’r, 82 Ky., 218, this court said: “In passing through cities, towns, or places where persons congregate, greater care and caution must be ex-
The foregoing being the settled doctrine in this State, it is manifest that the court below erred in refusing to permit the plaintiff to introduce the testimony hereinbe-fore referred to; and if the proof offered, or any material part thereof, had been introduced, it would have then been the duty of the court to have given, in substance, the instructions asked for by appellant.
Instruction No. 1, given by the court, reads as follows*. “If you believe from the evidence in this case that after