Opinion of the Court by
Affirming.
This action was instituted in the Nelson circuit court by W. Gr. Hahn, as administrator of Charles A. Hahn, deceased, against the Louisville & Nashville
While several alleged errors are assigned as grounds , for reversal, counsel for appellants state in their brief that they do not care to have the judgment .reversed unless this court shall hold that plaintiff made no case to submit .to the jury, and that the trial court erred in refusing to award appellants a peremptory instruction. We shall therefore discuss the case from the standpoint of the question thus presented. Decedent, Charles A. Hahn, at the time of his death was in the employ of the Louisville & Nashville Bailroad Company and engaged in the capacity of locomotive fireman. The accident occurred on the south track of the Short Boute Bailway in the city of Louisville. The railway referred to extends from near Floyd street to Thirteenth street, in the city of Louisville. It consists of a double track and passes over a trestle commencing at Floyd and First streets. The'grade between Floyd and First streets is very steep. Located about 120 feet west of Floyd street is a semaphore pole which was used for signal purposes for the benefit of all the trains of the different companies using the Short Boute Bailway track. The Short Boute Bailway was maintained, controlled, managed, and operated by the Illinois Central Bailroad Com
The accident occurred on July. 4,1907. It took place about 4:15 a. m. While the evidence for appellants is to the effect that it was then broad daylight, the evidence for appellee is that it was barely day, and the morning being a hazy one, it was necessary in signaling to use lighted lanterns. According to appellee’s testimony, the semaphore pole was located at a point from 14 to 18 inches distant from a passing engine or car. The position of the pole was such as to be a source of danger to the men operating the trains. According.to the evidence for appellants, the pole was some distance further from a passing engine or car, and it was necessary that it should be placed at that point. It-was a permanent structure, and had been there during all the time that decedent was in the employ of the Louisville & Nashville Railroad Company, a period of eight or nine months. While appellants’ witnesses testify that it was necessary that the semaphore pole be located at the point where it was located, the witnesses for appellee say that it should have been placed upon the side of the tracks at a point where its presence would not be dangerous to trainmen, and in this position it would have been just as serviceable for the purposes required. It was.
It is first insisted by appellants that, under the facts of this case, the jury could do nothing more than guess; that there was no evidence tending to show that decedent was actually struck by the semaphore pole; that he might have fallen out of the engine and the same result followed. While it is true that no one saw the accident, and that whatever conclusion is reached in regard to the cause of the accident is deducible only from the circumstances, in our opinion, all the facts point unerringly to the conclusion that decedent was struck by the semaphore pole. It is altogether improbable that a fall from an engine would have knocked off a portion of decedent’s skull. The presence of his cap at the semaphore pole, the fact that the pole was marked at a place where his head would likely come in contact with it, the .character of the blow on the head, and the further fact that a portion of his brains were found at that particular point, when considered in connection with the improbability of his death having occurred in any other way, removed the case from the field of speculation, and were sufficient to authorize the finding of the jury
But it is insisted that decedent in projecting his head from the engine was acting solely for himself, and not in the performance of any duty in the capacity of fireman.- The proof, however, shows that it was the decedent’s duty, not only to look in ■front of the engine, but to the rear of the train. If it was a hazy morning, as some of the witnesses testify, it is certainly true that decedent could get s better view, not only of the track, but of the train, by projecting his head out of the engine. Where it is the duty of the fireman to keep a lookout, we will not say that it is negligence upon his part to attempt to perform this duty'in a manner that will render it most effective. Nor can we say he was acting merely for his own convenience when his purpose was to serve his master in a most commendable way.
Lastly, it is insisted that the semaphore pole was a permanent structure and necessary for the operation of trains'; that the decedent had passed it daily for several months, and he must assume the risk of being-injured thereby. In support of this conclusion, we are cited to 4 Thompson’s Commentaries on the Law of Negligence, Sec. 4755. It is undoubtedly true that this doctrine .has been recognized in certain jurisdictions, but it is Hot the law of this state. Thus in the case of Cincinnati, etc., R. Co. v. Sampson’s Adm’r, 97 Ky. 65, 30 S. W. 12, 16 R. 819; this court used the following language : “It is contended that this bridge has been constructed for many years, and, no employe having been injured or killed by reason of its construction, it must be assumed that it is such a structure as is reasonably safe for its employes. We cannot adopt this view of counsel, but, on the contrary,
Under the facts of this case, there can be no doubt that the presence of the semaphore pole at the point where it was located was a source of great danger to men operating the trains along the Short Route Railway. We cannot say as a matter of law that.decedent was guilty of contributory negligence in projecting his head for the purpose of keeping a lookout at a time when it would come in contact with the semaphore pole. That was a question for the jury.
Judgment affirmed.