173 Ky. 213 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
Ebb Perry, while walking on the track of the L. & N. Railroad Company near Corbin, Kentucky, was struck by one of its engines and killed. In this suit by his administrator to recover damages for his death, there was a judgment in favor of the administrator for one thousand dollars, and a reversal of this judgment is asked on the sole ground that the court should have
It is conceded that Perry, at the time he was struck and killed, occupied the attitude of a licensee on the track, and that the company owed him the duty of warning, lookout and reasonable speed. But it is insisted in behalf of counsel for the company that the evidence showed conclusively that the engineer in charge of the engine that struck Perry exercised all the care demanded to prevent striking him, and this being so, the trial court should have taken the case from the jury.
It appears from the evidence that Perry was walking south on the ties, on the main track, on the outside of the rail, on what may be called the right-hand side of the track, or the engineer’s side in the direction in which he was going. The engine that struck him was running without any cars attached to it, at a speed estimated by eye-witnesses of from fifteen to twenty miles an hour and by the engineer at from twelve to fifteen miles an hour, and was going to make a stop, or, at any rate, slow down to go into a switch, about a hundred feet south of where Perry was struck. Perry, who, as shown by the evidence, was quite deaf, was walking with his back to the approaching engine and the track for several hundred yards north of where Perry was struck was straight, there being nothing to obstruct Perry, as he was walking down the track, from the view of the engineer, who was situated in his cab on the same side of the track on which Perry was walking. i
P. C. Jenkins, the postmaster at South Corbin at the time of the accident, was so situated on the right-hand side of and near to the track that he had a full and unobstructed view of the engineer in his cab as well as of the engine and Perry, until the engine got within a hundred feet or less of the place where it struck Perry. He testified that when the engine came about this close to Perry, Perry went into a cut that obstructed him from his view. Jenkins further testified that he had worked on railroads and operated engines and was acquainted with the duties of an engineer, the speed at which trains run, and the movements that an engineer would make in stopping an engine. He said that when the engineer commenced sounding the alarm whistle, the engine was three hundred feet or more from the place where Perry’s body was found after he was killed. That his attention
There is other evidence to the effect that the engine ran about seventy feet beyond the point where Perry Was struck.
Cooper, an experienced railroad engineer on this line of road, testified that the engine that struck Perry at the time and under the circumstances related, could have been stopped, in the exercise of ordinary care and with safety to the persons on the engine, in a hundred or possibly a little over a hundred feet from the place where the engineer first made an' effort to stop it. He further said that ah engineer has two mean’s of stopping the engine in an emergency, one known as the engineer’s brake valve, that operates the air brake, and the other the reverse lever, but that a quicker stop could be made by using either one of the methods than by using both of them. That it was against the rules of the company to apply the air valve and also reverse the engine at the same time, and besides that this method would cause the wheels to slide.
Hauck, who was in charge of the engine, said that he had an unobstructed view of Perry, and that when he first noticed him he was about two hundred and fifty or three hundred and fifty feet from where he was struck. That when he first saw him walking down the track in front of and with his back to the engine, he sounded the alarm whistle when he was about two hundred and fifty feet from him, at which time the engine was running from twelve to fifteen miles an hour. That he continued to sound the whistle until he got within about a hundred feet or more of Perry, when he discovered that he did not appear to have heard the approach of the train or to have taken any notice of the sounding of the alarm whistle. That when he dis
On cross-examination he said that he was about a hundred and fifty feet from Perry when he first observed that he did not give any attention to the approach of the train or the alarm signal. That Perry was about three hundred and fifty feet in front of him when he began to blow the alarm whistle, and that he ran about a hundred feet before he undertook to apply the brakes and reverse the engine, and that the engine ran about two hundred feet or more after he applied the air brakes before it stopped. He further said that he was looking at Perry from the time that he first discovered him, and that he did not give - any indication that he knew of the coming engine, nor did he make any effort to get off the end of the ties and out of the way of the engine, which he could have done by taking one or two steps.
Ellis, the brakeman, who was on the pilot or cowcatcher of the engine, and of coilrse had a plain view of Perry, said that the engine commenced to slow down when it was within one hundred and fifty or perhaps two hundred feet of Perry. This witness also said that Perry did not give any indication that he heard the engine approaching or the whistle sounding.
Under the well known rule of this court applicable to cases like this, that if the evidence on the subject of the negligence of the defendant is of such a nature as that there might be reasonable difference of opinion whether the defendant was guilty' of negligence or not, or if the reasonable inference from the facts tends to indicate that it was guilty of negligence, the case should go to the jury, we are of the opinion that the trial court did not commit error in submitting this case to the jury. Considering the evidence of the engineer in connection with that of the other witnesses, we think there
It is true that the engineer testifies that as soon as he discovered that Perry was not going» to leave the track, he used all the means at his command to stop the engine, and if there were no evidence on this subject except that of the engineer, it might well be said, in the absence of direct,' or satisfactory circumstantial evidence contradicting that of the engineer, that his- evidence would warrant the court in directing a verdict in favor of the defendant. But in this case we are not confined to circumstances tending to show that the engineer could have stopped the engine after he undertook to stop it before striking Perry, because Jenkins, who was qualified to speak on the subject, said he saw the engineer reverse his engine and put his hand on the air valve when the engine was between two hundred and two hundred and fifty feet, or, at any rate, over two hundred feet from the point where Perry was struck. Now, when the engineer discovered, while he was some two hundred feet or more from Perry, that he was unconscious of the approach of the engine, it was then his duty to at once use ordinary care with the means at his command, to stop the engine. That was his duty and his whole duty under the circumstances. And in the performance of that duty, as the evidence shows, he did not exercise ordinary care, for if he had, he could certainly have stopped his engine in less than two hundred feet.
Under the circumstances of this case, the evidence of the engineer that he did exercise all means at his command to stop the engine, is not to be taken as conclusive.
If, however, Hauck should be treated as a competent engineer and as one who understood the duties and requirements of his position, there is sufficient evidence to show that he could have stopped the engine before striking Perry. We may put the case upon this single issue and confine the negligence to the failure of the engineer, after he actually discovered that Perry was not going to leave the track, to stop his engine in time to avert the accident.
In considering the case we have given no attention to the evidence as to the defective hearing of Perry dr any other ailment with which he was afflicted. It is wholly immaterial, in disposing of the case from the point of view from which we have considered it, whether Perry’s hearing was bad or good, or whether he was in good health or bad health, for when an engineer actually discovers that a person on the track in front of his engine is not going to leave the track and is not giving any attention to the approach of the engine, he is under precisely the same measure of duty to save him if he can by the exercise of ordinary care with the means at his command whether he be old or young, or have good hearing or bad, or good eyes or bad eyes, or be sick or crippled, or strong and healthy.
The judgment is affirmed.