200 Ky. 397 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Tikis is an appeal from a judgment in favor of Marvin Pritchard’s administrator for $3,000.00.
At the time of the accident which resulted in his death, Marvin Pritchard was a little over nine years of age, and resided with his father and mother in Whitley City. On the morning of February 7, 1920, his mother sent kirn to Bryant’s store across the railroad tracks for the purpose of getting some coal oil. While attempting to cross the tracks he was struck by an engine of the O. N. O. & T. P. Railway, then being operated by the Director General of Railroads. The engine was going north at the time and was backing through the town.
It is conceded that there was sufficient evidence of the failure of those in charge of the engine to keep a proper lookout and to give reasonable warning of the engine’s approach, but insisted that the conditions were not such as to impose these precautionary duties.
Whitley City is incorporated and is the county seat of McCreary county. At the time of the accident it had about three hundred inhabitants. The town is. in two sections, and travel between the sections is not along a street, but along, over and on the side of the railroad tracks. There are three tracks, the northbound main, southbound main and the house track. Cn the east side of the northbound main track and on the railroad rigikt of way is a path which is used by travelers.. Between the southbound main track and the house track there is also a path which is used by persons walking. At the south end of the town there is a public county road crossing, and the same road crosses the railroad 1,478 feet away in the north end of the town. It was shown that from 95% to 97% of the people, walked the railroad tracks and the paths beside the railroad tracks., frequently crossing back and forth over the tracks. The father of the decedent testified that on an average of about 150 persons daily used the tracks and paths as a walkway. One witness stated that about one-half the pedestrians used the tracks, while the other half used the pathways.
Judgment affirmed.