118 Ky. 600 | Ky. Ct. App. | 1904
Reversing.
Appellees’ intestate, an infant under three years of age, was struck and killed by one of appellant’s freight trains, and this action was instituted by the administrator to recover for his death, resulting in a verdict and judgment in his favor for $1,200. The only question we deem it necessary to consider on the appeal is whether the evidence warranted a recovery. The facts shown are as follows: The infant was the child of a section hand of appellant, whose house stood beside the railroad track, and within 30 feet of it. Just before the child was killed, the father went across the railroad, and up it- about 250 yards to a spring, for a bucket of water. When he left the house the child was in the rear of the house, playing with some bricks; its mother being in the yard behind the house at work. While the father was gone, the child wandered out of the house and upon the railroad track, where he was run over and killed by a passing freight train about 160 yards from the house. A hoop, which was his favorite plaything, was found near his body, with blood on it. The house was out in the country, and the child was not on or near a public crossing. The proof for the appellee showed that no warning from either bell or whistle was given by the trainmen until the stop signal was -sounded, and this was about the time the child was struck. The place of the accident could be seen from the direction of the approaching train for a distance of 450 yards, and it may be concluded from the evidence that tho,se in charge .of the, train could, by the exercise of ordinary care, have seen the child if he was on the track, or very near it, in time to stop the train before striking him. No witness- for appellee saw the child after he left the house, and before he was killed. But it is insisted that it may be inferred from the evidence
It is conceded that under the repeated adjudications of this court there could be no recovery for the death of an adult under the proof. But it is insisted that a different rule applies to a child of such tender years. The evidence is not sufficient to show that the trainmen in fact saw the child in time to have saved him. The only ground for recovery is that, if they had been on the lookout and had exercised proper care, they might have seen him in time to stop the train before striking him. In towns or cities, or where for any reason the presence of persons on the track should be anticipated, it is the duty of railroad men to keep a lookout in front of moving trains; but at other parts of the road they are under no obligation to keep a lookout for trespassers on the track, but only to use all reasonable care to prevent injury to them after their peril is dig-
In Givens’ Administrator v. Kentucky Central Railroad Company, 15 S. W., 1057, 12 Ky. Law Rep., 950, a child nine years old was killed by a train, when no signal of its movement was given. The court in discussing the duties of the trainmen, said: “They are not required to presume that any one will trespass upon the exclusive right of way of the company, and they are therefore not bound to be on the lookout for trespassers, but only to avoid injury to them, if possible, when their presence and liability to danger become known. This rule applies in the case of a child just as it does in that of a grown person. If those operating a train were required to look out and guard against danger to children trespassing upon the track, then this would necessarily afford an opportunity to see all other persons who might be upon it and in danger. Undoubtedly a greater degree of care is required of them, as to children not old enough to be aware of the danger, than as to grown persons, when they have been once discovered upon or near the track;
In Louisville & N. R. R. v. Webb, 99 Ky., 348, 18 R., 258, 35 S. W., 1121, the question was again made, and the court .said: “The well settled rule in such cases is that a child is required to exercise only such a degree of discretion and care as may be reasonably expected of children of his age and intelligence in any given circumstances of danger, but the mere immature age of the person injured can not be allowed to have the effect to raise a duty where none otherwise existed.” This question was again presented, after a change in the membership of the court, in Becker v. Louisville & N. R. R. Co., 110 Ky., 474, 22 R., 1898, 61 S. W., 997, 53 L. R. A., 267, and the case was allowed to go to the jury only on the question whether the engineer in fact saw
On the facts shown by the plaintiff, the court should have instructed the jury peremptorily to find for the defendant.
The former opinion (78 S. W., 409, 25 Ky. Law Rep., 1656) is withdrawn.
Judgment reversed and cause remanded for further proceedings consistent herewith.
Judges Nunn and Settle dissent.