181 Ky. 227 | Ky. Ct. App. | 1918
Opinion of the Court by
Modifying former opinion.
Since rendering the original opinion in this case, which is reported in 180 Ky. 733, we have concluded that we misinterpreted as well as misapplied one principle of law involved in the case, which is whether the defendant and appellant, Louisville & Nashville Railroad Co., was under the duty of having its engine which collided with the handcar in which the decedent was riding and which produced the accident equipped at the time with a headlight, and on our own motion modify the opinion as herein indicated. In the opinion it is said that “Since there is no duty to warn such employees of the approach of trains, it would necessarily follow that they would not be entitled to demand that signals of the approach be given, nor to a/ny other equpiment which might warn them of the approach of trains such as headlights on engmes.” Since rereading the two cases of C. N. O. & T. P. Ry. Co. v. Yocum, one reported in 137 Ky. 117, and the other in 143 Ky. 700, we have become convinced that the part of the above excerpt which holds that an employee situated as the decedent was in this case (he being a licensee) was not entitled to have defendant’s engines equipped with headlights was error. The opinions referred to in' fact hold to the contrary, upon the idea that it being the duty of a licensee situated as decedent was in this case to discover the approach of trains, it was the duty of the railroad company to equip its trains so as to give him a reasonable opportunity to discover their approach, one of such equipments being a burning headlight on the engine while running the train in the night time. The same interpretation of the two Yocum cases, supra, has been adopted by this court, since rendering the original opinion, in the case of Louisville & Nashville Railroad Company v. Mullins’ Admx., 181 Ky. 148.
As stated in the original opinion, the evidence greatly' preponderates that the headlight on defendant’s engine
•So, if the evidence upon another trial is substantially the same as upon the last one, instead of the court peremptorily instructing the jury to find for the defendant, as directed in the original opinion, it will submit to the jury only the issue of the defendant’s negligence in failnig to have the headlight to its engine burning, and the issue of the decedent’s contributory negligence, together with an instruction upon the measure of damages.
The original opinion, therefore, is modified to the extent herein indicated.