148 S.W.2d 1050 | Ky. Ct. App. | 1941
Reversing.
Just after dark on the evening of December 7, 1938, James Bush was killed in the northern outskirts of the corporate limits of the town of Cumberland, in Harlan County, while walking on the track of appellant and defendant below, Louisville and Nashville Railroad Company — his death being produced by collision with a freight train composed of the engine, tender and about forty coal cars. It occurred at a point some one hundred yards north of a grade crossing known in the record as "Green Cornett" crossing — the name being derived from the fact that a Mr. Cornett conducted a merchandise business at or some point near that crossing. Not far from the place of the collision was the office of Dr. Kauffman, to which Bush was carried after the collision, he not having been instantly killed. Some emergency treatment was given him by Dr. Kauffman and he was thence immediately removed to a hospital at Lynch, where he later died.
His wife was appointed and qualified as his personal representative, and she filed this action against appellant and defendant below to recover damages sustained by the estate of the deceased on account of his *647
death, which she averred was due to the negligence of its agents and servants in charge of the colliding train, it being averred that the point of the collision was in a thickly settled community and wherein great numbers of people used the track as a passway in sufficient quantities to clothe the users with the rights of licensees to whom the operators of trains on the track at that point owed a lookout duty and the exercise of other precautionary measures for the safety of those who might be using the track under such acquiescing privilege. The doctrine has become a settled one in the law, and especially in this jurisdiction, but as to when it should or should not be applied is by no means certainly ascertained by any fixed and definite standard. However, it has been so judicially determined by this court in a number of cases, some of which are Henson's Adm'r v. Hines,
The answer of defendant denied the material averments *648 of the petition, coupled with a plea of contributory negligence on the part of the decedent, which in turn was denied by plaintiff. At the trial there was a verdict in favor of plaintiff for $4,500, upon which the court pronounced judgment after overruling defendant's motion for a new trial, to reverse which it prosecutes this appeal. The motion for a new trial contains twelve separately designated grounds, some of which are duplicates of others, and many of which we regard as without merit, but among them are (1) error of the court in overruling defendant's motion for a peremptory instruction, made both at the close of plaintiff's testimony and at the close of all of the testimony, and (2) erroneous instructions given by the court upon motion of plaintiff, and refusal to give instructions offered by defendant. After a careful and most painstaking study of the record, we have concluded that the determination of the appeal hinges upon a proper determination of the two stated grounds, each of which will be considered and determined in the order named.
1. In considering ground (1) we are met at the threshold with the extremely doubtful sufficiency of the proof to show that the place where the fatal collision occurred was one within the principle of law above outlined. There was but one witness who testified positively as to the extent of the pedestrian use requisite to create the right of action upon the ground stated, if indeed he did so. All of our prior cases upholding and sustaining the right of action upon the ground relied on by plaintiff not only say that there must be more than one hundred and fifty persons per day who use the track for pedestrian travel, but also that the place must be in a thickly settled community and that the travel must be upon the railroad track, or sufficiently near to it as to expose the traveler to danger from passing trains. Such travel over a passway located on the right of way a sufficient distance from the track as not to endanger travelers over it from collision by passing trains would not create the right of action under the principle of law under consideration, since in that event there would be no danger to travelers which operators of railroad trains are required to anticipate and guard against. In this case it is shown by the express testimony of the witnesses, and by photographs of the track as it existed at the time of the collision, that there was a well-beaten *649 path beyond the ends of the crossties of the track, sufficiently distant therefrom as to make travel in it free from possible collision with passing trains, and if decedent had been within that path, which the photograph shows had a smoother and better surface upon which to walk, he would not have been in the wake of the train that collided with him. Instead, however, he saw proper to appropriate the space between the rails of the track and thus place himself where a collision would be inevitable, unless relief from his perilous situation was voluntarily made by himself, or by some appropriate action on the part of the operators of the colliding train.
A similar situation was presented to this court in the case of Cumberland Railroad Company v. Walton,
That testimony of the engineer stands uncontradicted in this record, although a witness for plaintiff by the name of Otis Scott testified to having seen deceased before then on the track somewhere in the neighborhood of the point where the accident happened and at that time, as we gather from that witness' testimony, he (deceased) was traveling in an opposite direction, which would have made him and the colliding train going in the same direction with his back to the train; but it clearly appears from Scott's testimony that he was referring to a different train which passed the point of the collision some considerable time earlier than the one that later produced it. This is not only conclusive from other testimony in the case, but Scott said that the train to which he referred never made any stop at or near the Cornett crossing but which the colliding train undoubtedly did, as everyone who testified in the case so stated.
Moreover, it was shown that not long before the colliding train passed over the point of collision there was another one traveling in the same direction, which was, no doubt, the one referred to by the witness Scott, and which other facts and circumstances in the case would strongly indicate as being correct. Another fact supporting the theory that deceased at the time of the collision was meeting the train with which he collided with his face toward it was testified to by a witness by the name of Spurlock, who was engaged in some sort of concrete work at or near the Cornett crossing. Some short while before the collision he saw decedent at or coming from a spring near to that crossing, and south of it and in an opposite direction from the point where the collision occurred. Therefore, in order to get to that point deceased would necessarily be traveling with his face toward the approaching train. The witness stated that he did not observe where or in what direction deceased went after witness saw him at or about the spring. There is, therefore, no way of escaping the conclusion that deceased was not only traveling between the rails of the railroad track and not in the safe pathway paralleling it, but he was also facing the approaching train, and which clearly made him guilty of the grossest neglect for his own safety. It was also proven by the *651 physician that the breath of deceased was strongly tinctured with the odor of alcohol, and which no one contradicted, except plaintiff, his widow, who made a short visit at the hospital, but who did not testify to an opportunity for discovering the fact to which the physician testified.
A most active witness on behalf of plaintiff, to whom we have heretofore referred, who admitted that he had been working up the case for her, and a companion of his by the name of Estep, claimed to have seen the body of the deceased in the air immediately following the collision, but neither of them saw the collision itself, nor did they see the direction the deceased was traveling at the time of the collision and immediately preceding it. They testified that the engine had no headlights. But a great number of witnesses, some of whom testified for plaintiff, contradicted their testimony on that point which, taken in connection with their clearly manifested bias, greatly weakened the credibility of their testimony, which was contradicted on many points to which they testified other than the absence of lights on the engine. The extremely active witness, occupying the position of general in command of the plaintiff's forces, was one Oscar Yeary, who, with his companion Estep, claimed to have been at the next crossing south of Cornett crossing, which was still farther away from the point of collision when they claim to have seen the effects of the collision as testified to by them.
We have had occasion to deal with such situations as presented by this record in a number of other preceding cases and in which we, without hesitation, declared that a directed verdict for the defendant should have been given. Among them are: Sizemore's Adm'r v. Lexington E. R. Co.,
2. Our disposition of ground (1) disposes of the instant appeal without considering ground (2), but since there might be a second trial, and inasmuch as ground (2) is well taken with reference to certain instructions given and offered, we deem it proper to consider, also, this ground (2) by which the court may be guided if a second trial should be had. Instruction No. I attempted to submit to the jury the question as to whether or not the place of the accident and the amount of travel thereon were sufficient to create the ground of liability relied on by plaintiff, and in doing so it required the jury to believe from the evidence that "The points in question was habitually used by the public at the time of day upon which the evidence shows the deceased, James Bush, was killed and that the presence of persons on the tracks at that place and time was reasonably to be expected," etc. If the jury so found, they were then told that it became the duty of the defendant to then take the precautionary measures required under such conditions. *653
The instruction did not submit to the jury the approvedextent of use by the public of the place where the accident happened in order to create the imposed duty upon the operators of trains. That use is one made by "a large number of the public," and not such as is made by one or a few members of the public, as is clearly pointed out by us in the case of Louisville N. R. Co. v. Hyde's Adm'r,
The same ruling was made in the later case of Louisville N. R. Co. v. Foust,
We are also of the opinion that instruction "C" offered by defendant should have been given to the jury — it being the reverse of instruction No. I in concrete form and which seems to be approved in the cases of Cumberland Railroad Company v. Girdner,
Wherefore, for the reasons stated, the judgment is reversed, with directions to set it aside, and for proceedings consistent with this opinion. *654