138 Ky. 459 | Ky. Ct. App. | 1910
Lead Opinion
Opinion op the Court by
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
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,
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
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.