194 Ky. 441 | Ky. Ct. App. | 1922
Opinion of the Court by
Reversing.
Appellee Hopldns was walking along a side track of the L. & N. railroad near Molus, Harlan county, Kentucky, in November, 1918, when he was struck from behind by a freight engine and severely injured, for which he instituted an action in the (Garrard circuit court and recovered a verdict for $2,000.00 damages. The Director General of Railroads appeals from the judgment entered
Hopkins was a section band regularly engaged by tbe Director General at that time in tbe operation of the L. & N. railroad, and boarded at a bouse very near tbe Molus depot. The section gang consisted of eight or ten men, all of whom were required to meet at tbe tool bouse of tbe company at seven o’clock in tbe morning, daylight saving time, for tbe purpose of beginning their day’s work. The tool bouse was about one mile from tbe Molus depot, and there was no road by which Hopkins could travel to tbe tool bouse except along tbe tracks of tbe railroad, unless be crossed tbe Cumberland river and went up on tbe west side thereof to a point opposite tbe tool bouse and crossed back to tbe railroad, which, besides being a bad road, was very much out of bis way. Tbe Cumberland valley at that point is very narrow, closed in on either side by high mountains: Tbe railroad right of way occupies practically all of tbe east side of tbe valley at that point. Besides tbe main track there were two side tracks near Molus depot. One of these side tracks was called tbe bouse track, used for loading and unloading freight at the Molus depot, and tbe other side track began just a short distance south of tbe Molus depot and extended parallel with tbe main track south beyond tbe tool bouse at which appellee Hopkins was required to report each morning, and was known as tbe passing track. According to appellee Hopkins’ testimony be left bis boarding bouse about twenty minutes before seven and started up tbe main track toward tbe tool house, but before be bad gone far be crossed on to tbe side track and was proceeding south when be was struck from tbe rear by one of tbe large freight engines then in use on tbe railroad, and which engine was at that time pulling fifty-four cars. About that hour a passenger train from Harlan was due to pass on tbe main track going north toward Pineville, and appellee Hopkins, knowing this fact, was walking on tbe side track, and tbe freight train which struck him and which was traveling south toward Harlan, took tbe side track at Molus for the purpose of allowing tbe passenger train to employ tbe main track. It is tbe contention of appellee Hopkins,
We have never fixed with definiteness the exact number of persons using the tracks of a railroad longitudinally as a walkway at a given hour and place continuously which will constitute such pedestrians licensees, but we have held in the case of Willis’ Administratrix v. L. & N. R. R. Co., 164 Ky. 124, that the use of railroad tracks by as mhny as one hundred and twenty-five persons through the entire day was not sufficient to constitute such users licensees, and in the recent case of C., N. O. & T. P. R. R. Co. v. Brown, 192 Ky. 724, we held that the use of
Judgment reversed. Whole court sitting.