Ill. Cent. R. R. v. Dupree, 138 Ky. 459

Ill. Cent. R. R. v. Dupree

138 Ky. 459 | Ky. Ct. App. | 1910

Lead Opinion

Opinion op the Court by

William; Rogers Clay,

Commissioner — Reversing.

Artie Dupree, a child five years of age, while attempting to cross appellant’s railroad tracks at a public crossing known as “Meadows Crossing,” in the city of Fulton, Ky., was run over b.y a freight train, and her feet so crushed that amputation became necessary. Suing by her next friend,- Joe Dupree, she brought this action against the Illinois Central Railroad Company to recover damages The jury awarded her $2,000. The railroad company appeals.

The sole ground urged for reversal is the failure of the trial court to award appellant a peremptory instruction. Just previous to the accident, Artie Dupree and her sister, a child one year younger, who were in charge of a negro nurse 15 years of age, were standing near the track on which the accident occurred. Between them and the latter track was another track. Thus they were about 12 or 15 feet distant from the track where the injury took place. While thus standing, a freight train, consisting of an engine, caboose, and one car, approached the crossing. When the engine reached the middle of the street, Artie Dupree broke away from her *461nurse, and started to cross 'the track immediately in front of the engine. According to the weight of the evidence, she got across the'first rail, but stumbled upon the second rail. The front wheels of the engine passed over her feet. Upon the pilot of the engine were two of appellant’s employes. One of these attempted to catch the child, but failed to do so. As the engine approached the crossing, the engineer saw the nurse and two children standing in a place of safety. When the engine reached the middle of the street, at a point 18 or 20 feet from where' the nurse and children were standing, the engineer saw the child break away from the nurse and start across the track. He immediately applied the emergency brakes, and did everything in his power to prevent the injury-. At the place of the accident there was a plank crossing over the railroad tracks, and the accident occurred about 8 or 10 feet from the crossing. There was evidence to the effect that the engine bell was not rung as the train approached. There was also evidence to the effect that the train was going pretty fast.. No witness for appellee, however, attempted to give the rate of speed. In speaking of the rate of speed they use such expressions as “fast,” “very fast,” and “pretty fast.” The evidence for appellant is to the effect that the bell was being rung, and that the train was traveling at the rate of about five miles an hour. The engineer also testified that he succeeded in stopping the engine within 30 or 40 feet from where the child started t'o cross in front of it, and that it was impossible to stop any sooner; The principal witness for appellee on the question of how the accident occurred is Ardella Freeman, the colored nurse, who was in charge of appellee and her sister. She testi*462fied that she was with Artie Dupree and her sister at the time Artie was injured. The train was run ning fast. She did not hear any ringing of the beii or blowing of the whistle. When the engine was about halfway across the street, Artie took a running spell. She said, “Ardella, let’s go on this side. Look, let’s go over here.” She attempted to grab Artie, but missed her. When Artie started across, she ran as fast as she could. At the time of the accident she and the children were standing still. Both she and Artie saw the train approaching; didn’t remember whether or not Artie stumped her toe. She fell, however, and was injured. The front wheels of the engine ran over her.

Counsel for appellee argue that, inasmuch as there was evidence tending to show negligence on the part of appellant in failing to ring” the bell and in running at a fast rate of speed, appellee was entitled to have the case submitted to the jury, because she was entirely too young to be guilty of contributory negligence. It may be admitted that the child was too young to be guilty of contributory negligence, but in making out her case it was necessary, not only to show negligence on the part of appellant, but negligence that was the proximate cause of the injury complained of. It bfecomes necessary, then, to consider the facts from this standpoint. Manifestly, the failure, if any, on the part of appellant’s agents to ring the bell, played no part in the matter. The purpose of ringing the bell is to give those on or near the track warning of the approach of the train. The evidence before us clearly discloses the fact that the child knew the train was approaching, and that this was the reason she took a sudden notion to cross the track. It was not negligence, *463then, to fail to apprise lier of that which she already knew.

The only remaining question is whether or not appellant is responsible because there was evidence tending to show that the train was running very fast. It may be admitted that if the child had been standing on the track, or'had gone upon the track when the train was some distance away, the speed of the train might have played some part in the accident. According to all the proof, however, the child darted across the track immediately in front of the engine. Those in charge of the engine could not have anticipated that the child, who was in a place of safety, would suddenly take a notion to run across the track immediately in front of the engine. They had a right to assume that she would remain in a place of safety until it became reasonably apparent that she intended to cross the track. When she did start across the track, everything was done that could have been done to avoid the injury. As she ran rapidly and immediately in front of the engine, it is immaterial whether the speed of the train was five, ten, or fifteen miles an hour, for no power on earth could have stopped the train in time to avoid the injury. That being the case, the appellee failed to show that the negligence of appellant was the proximate cause of the injury complained of. On the contrary, all the evidence goes to show that appellee’s injuries were the result of an unfortunate accident, for which appellant was in no wise responsible. Under these circumstances, we conclude that the trial court erred in failing to give a peremptory instruction in favor of appellant.

Judgment reversed and caused remanded for a new trial consistent with this opinion.

Dissenting Opinion

Nunn, J.

I dissent for the reason that there was evidence that the bell was not rung and the train was being run very fast as it approached the child and in a city when it was the duty of appellant to ring the bell or blow the whistle and keep a lookout for persons, and to have the train under control so as to prevent injury to persons. See I. C. R. R. Co. v. Murphy’s Adm’r, 123 Ky. 787, 97 S. W. 729, 30 Ky. Law Rep. 93, 11 L. R. A. (N. S.) 352.