181 Ky. 539 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
Mary J. Johnson as administratrix of her husband, W. B. Johnson, brought this suit against Sandy Valley & Elkhorn Railway Company to recover damages for his death. At the conclusion of the evidence, the trial court directed the jury to .return a verdict in favor of the defendant. Judgment was entered accordingly and plaintiff appeals.
The defendant operates a line of railroad extending from Shelby to Jenkins, in Letcher county. The accident occurred on a bridge about 335 feet from Elswick station. The side girders of the bridge consist of solid metal sheets which extend four feet and nine inches above the cross ties. The bridge is a connecting link between two ten degree reverse curves and an engineer on a track approaching from Elswick station has only a side view of the bridge until he reaches a point near the bridge. The accident occurred on the morning of February 26, 1914. It was a cold day and the ground and tracks were covered by sleet and snow. W. B. Johnson was en route to Elswick station to take a train for Pikeville. Instead of traveling 'the public .road adjoining the railroad, he proceeded along the railroad tracks. Before reaching the bridge he was joined by Garfield Johnson. After going a short distance, they heard a train whistle. They thought that this was the train
It is conceded that the deceased was a trespasser and that the company owed him no duty except to use ordinary care to avoid injuring him after his peril was discovered, but insisted that the evidence on this question was sufficient to take the case to the jury. In a case like this, it is not sufficient to show that those in, charge of the train might have seen the trespasser, but it must appear that they actually saw him. That they saw him may be established either by direct evidence or proof of facts showing that the circumstances and conditions were such that those in charge, of the train could not have failed to see him. Tennessee Cent. R.
Judgment affirmed.