176 Ky. 409 | Ky. Ct. App. | 1917
Opinion op the Court by
Reversing."
While walking along the track of the 'Chesapeake &' Ohio Railway Company in the town of Greenup, J. R. Moran was struck and killed by one of the company’s trains. His administrator brought this suit against the company and its engineer and fireman to recover damages for the decedent’s death. At the conclusion of plaintiff’s testimony the trial court directed a verdict in favor of the defendants. Judgment was rendered accordingly, and plaintiff appeals.
The facts are as follows: The company’s railway runs in an easterly and westerly direction, through the incorporated town of Greenup. The westerly limit of Greenup is the Little Sandy river, over which the company maintains a trestle. From this point to the place where decedent was struck and killed is about 2,160 feet. Between these two points the company’s tracks are crossed by three streets, Washington, Harrison and Laurel. Decedent was killed about 600 feet east of the company’s depot and 410 feet, east of Wilson’s lower mill. The distance from the lower mill to the place of the accident is about 1,010 feet. When the train which struck decedent was at the trestle it sounded an ordinary warning signal. It also sounded the signal for Warnock street. As the train was passing the Wilson mill, which is located immediately west of Harrison street, the engineer repeatedly sounded the alarm whistle, and, after a slight intermission, continued to give the danger signals until the decedent was struck. When the alarm blasts were first given the train was about 1,000 feet distant. The alarm blasts were heard by everyone in the vicinity and were sufficiently loud to apprise a person of ordinary prudence of the approach of the train. The train was a
Greenup is an incorporated town, and it is conceded that the accident occurred at a place where the presence of persons on the track should have been anticipated by the company. That being true, decedent was not a trespasser, but a licensee, to whom the company owed .the duty of keeping a lookout, of running the train at a reasonable rate of speed, of giving timely warning of its approach and of using ordinary care to avoid injuring him. On the other hand, the decedent himself was under the duty to use ordinary care to learn of the approach of the train and to keep out of its way.
"While it is true that drunkenness is not contributory negligence as a matter of law, yet it is equally well settled that a drunken person must exercise for his own safety the same degree of care that an ordinarily prudent person, if sober, would exercise under like or similar circumstances. C., N. O. & T. P. Ry. Co. v. Reed, 154 Ky. 380, 157 S. W. 721. As before stated, the alarm blasts given by the engineer were so loud and repeated that they were heard by everyone in the vicinity There can be no doubt, therefore, that they were sufficient to apprise an ordinarily prudent and sober person of the
Judgment reversed and cause remanded for a new tiral consistent with this opinion.