194 Ky. 220 | Ky. Ct. App. | 1922
Opinion of the Court by
Reversing.
Between four and five o’clock in tlie early morning of March 16,1917, the dead body of .Samuel B. Stidham was found lying face down in a path just out from the ends of the crossties on a fill upon which was the track of the appellant and defendant below, Louisville & Nashville Railroad Company, and on that part of its road running from Jackson in Breathitt county to Hazard and other places in eastern Kentucky, and a. little less than two miles from the corporate limits of Jackson, the point being between three hundred and four hundred yards north from a way station called Dumont, from which station there is a spur track running to the town of
At that time there was a local train which operated between Jackson and Quicksand, making several trips each day, known as the ‘ ‘ shifter. ’ ’ This suit was filed by the administratrix of decedent against defendant to recover damages for the alleged negligent killing of him by defendant, which negligence, as alleged, consisted in the failure of those in charge of the “shifter” train to anticipate the presence of decedent upon the track and to .take the necessary precautions for his safety, since it was averred that he was at a place on the track where, because of the acquiescence in the use of it by pedestrians, his presence should have been anticipated.
Appropriate pleadings made the issues and upon trial there was a verdict in favor of plaintiff for the sum of $17,000.00 which this court reversed in an opinion reported in 187 Ky. 139, upon the two grounds, that the proof failed to establish any negligence against the defendant, i. e., that the use of the track at the place where decedent’s body was found was not shown to be such as required the company to anticipate the presence of persons thereon or to take any precautionary measures for their protection; and that the proof failed to show that decedent was killed by a collision with any train of defendant, much less by the only one which the petition alleged produced it; and it was held that the court erred in failing to direct a verdict for defendant. After the return of the ease plaiptiff amended her petition by alleging that those in charge of the “shifter” train actually saw decedent’s presence upon the track in time by the exercise of ordinary care to have prevented a collision with him
The chief contention made by defendant for a reversal of the judgment is the same as if made and we sustained on the former appeal, which is that the court erred in failing to sustain its motion for a peremptory instruction. Complaint ip also made of the instructions of the court to the jury as well as of evidence introduced by plaintiff, and we think the record justifies each of the complaints, but in the course of the opinion we will discuss only such as we deem proper.
According to the record Jackson is a town of between fifteen and twenty-five hundred people, according to theestimates of the witnesses who testified to the fact, while the town of Quicksand, three miles from Jackson, has a population of between four hundred and one thousand, according to the same character of testimony. There is ho 'town at all at the place, Dumont, but between it and Jackson there are three creeks running into the Kentucky river, and- up and down them there, are a few scattering houses located all the way from near the right of way to four miles therefrom. These facts appeared in th.e record when first before us and also the statements of witnesses that a “great number of people” walked the track both during the day and the night at the place where the decedent’s body was found, which is near half way between Jackson and Quicksand, and in a very rugged portion of the country, as shown by a number of photographs introduced at the .trial and brought here with the record. It is a sparsely settled portion of the country and is rough and mountainous.' The cattle guard, near which the body was found, is shown to be a short distance from an abrupt curve around a point of the mountain which runs up to the South Fork of the Kentucky river. On one side of the road bed in rounding that point is a precipitous rock bluff, while on the other is an embankment running down to the fiver, and the head light on an engine would not shine down the track until it rounded that curve, the decedent being killed, according to the theory -of plaintiff, between nine and ten o ’clock on
The only additional testimony on the last trial, on the issue as to the use of the road at the particular point, consisted in estimates of the witnesses (some of whom testified on the former trial) as to the number of persons, according to their opinion, who walked the track at the point in question during each twenty-four hours, and some of them gave their estimates as to the number so using the track between the hours of seven, nine and ten o ’clock at night. These estimates varied as to the number of persons traveling the track during the entire twenty-four hours from fifteen to thirty persons, according to the witness Louis Hays, to one hundred or one hundred and fifty, according to the witness Clay Watkins, and the greatest number who traveled the track at night between seven and fen o’clock, according to the highest estimate, was between twenty-five and thirty persons.
We have been cited to no case holding that the use of the track by pedestrians to the extent indicated was sufficient to impose upon the. operators of trains the duty to anticipate the presence of persons thereon, and to take the required precautionary measures to prevent a collision with them. The cases cited and relied on by counsel for plaintiff, an illustration of which is C. & O. R. R. Co. v. Warnock’s Admr., 150 Ky. 74, are instances where the injury occurred within or immediately near to an incorporated town and where the evidence showed almost constant travel at -or about the same- hour of the day as that of the injury. It is true that we have held in a num
In the case of Adkins’ Admr. v. B. S. & C. R. R. Co., 147 Ky. 30, a demurrer was sustained to the petition, but it set out facts equally as strong as those proven in this case, and in sustaining the judgment of the trial court it was said: “The mere use of a railroad track by the public does not convert the users from trespassers into licensees, unless this use is at a place where the public have a right to go and be, as at a public crossing or the like, or, unless it is in a city, town or populous community where large
In the case of Gregory v. L. & N. R. R. Co., 25 Ky. L. R. 1986, it is said, in substance, that if railroad companies should be required at all places up and down their lines to run their trains with the view of safety to trespassers “the result would be to practically abandon the roads to them” and would so retard the railroad business as to practically destroy it. The doctrine of that case was quoted and adopted in the later one of Willis ’ Admrx. v. L. & N. R. R. Co., 164 Ky. 124, in which case, according to the testimony, as many as one hundred and twenty-five people used the tracks at the place of the accident every day, though it was in the country but surrounded by a more thickly populated community than the one in the present case. Other recent cases following the rule as laid down in the Adkins, Gregory and Willis cases are: L. & N. R. R. Co. v. Horton, 186 Ky. 617; Hungate v. Hines, 188 Ky. 365; C., N. O. & T. P. R. R. Co. v. Brown, 192 Ky. 724; Henson’s Admr. v. Hines, 193 Ky. 198; Howard v. I. C. R. R. Co., 189 Ky. 60; McKnight’s Admr. v. L. & N. R. R. Co., 168 Ky. 86, and Sizemore’s Admr. v. L. & E. R. R. Co., 169 Ky. 497 These later cases hold, in substance, that although the place of the accident be in an incorporated town, still if the amount of travel was not such, and had not been such, for a sufficient length of time as to create the presumption of an acquiescence on the part of the company and to require the operators of trains to anticipate the presence of persons upon the track, the duty to do so does not exist; and further, that in no case in the country will such duty arise unless the required amount of travel exists and it is in a thickly populated community. The truth of the matter is that the doctrine should not be extended, since to do so, as stated in a number of the eases referred to, would - largely curtail and in some places practically destroy the efficiency of railroads in
We, therefore, conclude that no negligence against defendant was shown at the last trial, which dispenses with the necessity of discussing or determining other questions raised, though it is doubtful if the evidence on that trial was sufficient to -authorize a finding that the death of decedent was produced Iby a collision with defendant’s train. Instruction number one was also erroneous in many particulars, chief among which is that it assumed that the place where decedent was killed was one requiring precautionary measures on the part of the operators of the train, and it also required such precautions on their part as would enable a pedestrian on the track “to reach a place of safety.” It is open to other criticisms but, in view of what has been said, we will take neither the time nor the space to point them out.
The motion for a peremptory instruction made by the defendant should have been sustained, and the judgment is reversed with directions to grant a new trial and for proceedings consistent with this opinion.