294 S.W. 810 | Ky. Ct. App. | 1927
Reversing.
The appellant, Louisville Nashville Railroad Company, which we shall refer to as the railroad company, seeks by this appeal to reverse a judgment for $8,000 recovered against it by the administrator of Clay Dooley. Clay Dooley was killed by a train belonging to the railroad company, about a half mile north of Conway in Rockcastle county, in the early morning of April 8, 1925.
At the conclusion of the evidence for the plaintiff, the railroad company moved the court to instruct the jury to return a verdict for it, and, when that motion was overruled, it declined to introduce any evidence. The testimony is meager, not only as to the happening of the accident, but also as to the topographical conditions at that point. Dooley lived on the east side of the railroad, and just about opposite Dooley's house was the house of his father-in-law, Hiram Thacker, on the west side of the railroad. The railroad company has three tracks at that point. The eastern track, or the one next to Dooley's house, was a storage track. The middle track was the main line track of the railroad, while the western track was a passing track. Dooley kept his teams in Mr. Thacker's barn, and the inference is that he had started to the barn to attend to his teams. A short distance south of Dooley's house was a public road, known as the Fairview public road, and, from the plats and evidence in the case, it is apparent that Dooley would have had but a short distance further to walk if he had gone to the public road and had crossed the railroad track at that *69 point, and then gone to Thacker's barn; but instead of doing that, he apparently started directly across the railroad from his house to Thacker's barn. At that time a freight train was going north on the west or passing track. Dooley was struck and killed by a train going south on the center or main track.
None of the witnesses who have testified saw the accident. One witness, Lee Smith, who was near the Taylor public road crossing about 700 feet north of the point of the accident, said that just before the accident he looked back and saw Dooley walking toward the track. When asked how close Dooley was to the east side of the track, he said: "He was right up; it might have been 6 or 8 feet of the —." The witness did not complete that sentence, but, continuing his evidence, he said: "The man stopped and turned around, and looked like he was looking at the freight train that was going north." He said there was a wire fence between him and Dooley, and that he, on account of that, could not see well, and he could not tell whether he was on the track or not, but Dooley appeared to be just approaching the east track. He said that at the time he saw a man on the engine of the southbound train with his head out of the window, looking down the track in the direction of Dooley, and this is all the evidence shows about the accident. According to this witness, at the time he saw this man on the engine looking in Dooley's direction, Dooley had then stopped near the east track, and was looking at the freight train going north on the west track. Evidently Dooley afterwards crossed the east track and got onto the center or main track, in front of the southbound train, by which he was struck and killed; but just when Dooley did this, there is nothing in the evidence to show. At the time Smith saw him, Dooley was in a place of safety, and just when Dooley crossed the eastern track and got onto the middle track and into a place of danger does not appear in the evidence.
Clearly, Dooley was a trespasser, and the railroad company owed him no duty until it discovered his peril. After the agents of the railroad company on this engine discovered the peril of Dooley, if they did, it was their duty to use ordinary care with the means they had at hand consistent with the safety of the train and the persons on it to avoid injuring him. If they failed to do so, then they were negligent, for which the railroad company *70 is responsible; but negligence is never presumed, and there was no proof here that the man on this engine saw Dooley in a place of peril at all, much less saw him there in time to have avoided injuring him. The witness Smith does not say that, at the time he saw Dooley stopped and looking at the train, the man on the engine could then have seen Dooley at all, and there can be no doubt about where Dooley was at that time, because upon his redirect examination, in answer to a question propounded by the attorney for the plaintiff, in an effort to have this witness locate Dooley exactly, with the map before him, the witness was asked where it was he saw Dooley standing with his back to the north. The witness located Dooley as opposite his home. Whereupon the attorney for the plaintiff asked him: "On the east track?" The witness answered. "Yes, sir." Thus the evidence closes with Dooley in a place of safety, without any evidence that Dooley could then be seen by the man on the engine, and there is nothing to show when Dooley crossed this east track and got onto the middle track where he was killed. The railroad company owed Dooley no duty until it discovered his peril. He was in no danger until he got onto the middle track, and there is nothing in the evidence to show when that happened.
The plaintiff is relying on the case of L. N. R. Co. v. Nickell,
In the case of Ky. Traction Terminal Co. v. Roschi's Adm'r,
"Such presence of mind and efficiency are not possessed by ordinary men nor available to the defendant, and hence plaintiff was not entitled to protection in that extreme degree, and the trial court erred in refusing to direct a verdict for the defendant."
What was said in the Roschi case was quoted and approved in Ky. Traction Terminal Co. v. Brackett,
Therefore the court should have instructed the jury to find for the defendant, and, because it failed to do so, the judgment is reversed.