195 Ky. 804 | Ky. Ct. App. | 1922
Opinion of the Court by
Reversing.
This 'appeal is by tbe Louisville & Nashville Railroad Company and the Director General of Railroads from a judgment for $7,500.00 in favor of Elizabeth Banks’ administrator.
While walking along or near the track of the Louisville & Nashville Railroad Company in the town of Blackey, Mrs. Banks was .struck and killed by a train being operated by tbe Director General of Railroads, and the principal question for decision is, was Mrs. Banks a licensee to whom those operating the train owed the duty of giving warning, keeping a lookout, etc.?
Blackey is an incorporated town of about 150 inbabitants. The accident occurred at a point about 1,200
The. determining factor in a case of this kind is not the habitual use of the track by the’ public. It may be habitually used by al-1 the public that pass that way, but the number of persons so passing’ may be very small. Therefore, in order to convert trespassers into licensees, it is necessary' that the track be habitually used by the public in such large numbers that the presence of persons on the track should be anticipated. Cornett’s Admr. v. L. & N. R. R. Co., 181 Ky. 132, 203 S. W. 1054. Of all the witnesses who testified on the question only one made any estimate of the number of persons -using the track, and he fixed the number at from ten to thirty each day. The statements of the ether witnesses conveyed no definite idea as to the number of persons using the track. All that they say may be true, and yet the number may not exceed that fixed by Dr. Ison. We have held that the use of a railroad track by a much larger number than thirty did not convert them from trespassers into licensees, to whom precautionary duties were due, Willis’ Admrx. v. L. & N. R. R. Co., 164 Ky. 124, 175 S. W. 18, and there is no escape from the conclusion that the evidence in this case is wholly insufficient to show that decedent was a licensee, and the motion of appellants for a directed verdict should have (been sustained. . L. & N. R. R. Co. v. Stidham’s Admrx., 194 Ky. 220, 238 S. W. 756.
We may further add that a railroad company is not liable for damages for negligence arising out of the operation of a railroad during Federal control, and that the motion of the Louisville & Nashville Railroad Company to quash the process against it should have been sustained. Rogers Brothers Coal Co. v. Hines, Director General, etc., 193 Ky. 795, 237 S. W. 1058.
Judgment reversed and cause remanded for new trial consistent with this opinion.