148 Ky. 252 | Ky. Ct. App. | 1912
Opinion op the Court bt
Affirming.
This is the second appeal in this case. The opinion uuon the former appeal is to be found1 in 102 S. W., 888. The facts upon the first trial are stated there. Upon them this court held that a peremptory instruction should have been given in favor of the railway company.
In addition to the above noted differences in the
On the character and speed of the train which struck and killed Reynolds it appears from the testimony introduiced by plaintiff that it was composed of two engines, some thirty-six or thirty-seven cars, that it was running at twenty-five to thirty miles an hour, and that at the time and place this train could have been stopped in 200 to 250 yards.
With this testimony in the record; i. e., that the danger signals were given at 1,880 feet from the man’s position practically in continuity until the train struck
The motion should have been sustained. We will concede for argument the plaintiff’s position that the testimony, or the excluded, and as he contends, admissible testimony, was sufficient to establish that at the farthest point contended for by him, the point 1,880 feet distant, Eeynolds was seen and known to be a man in a position of danger, and we likewise will further concede that the train could have been stopped in 600 feet, the shortest distance claimed by plaintiff. In other words, the case will be considered upon the theoretical facts that for 600 yards the engineer knew the object was a human being, and that though he could have stopped his train in 200 yards, he did not stop it. Under this condition tñere was no obligation on the engineer or the railway company to at once stop the train. When the engineer saw Eeynolds sitting on the side of the track, he had a right to presume that he would get off before the train reached him, and there was no obligation to check the train until from the circumstances a person of ordinary prudence would conclude that Eeynolds was heedless or unconscious of the approaching train. The mere intervention of a distance of 200 yards, without movement by him, no other fact appearing than Eeynolds’ presence upon the track, was not sufficient to apprise a person of ordinary prudence that Eeynolds would not get out of the way of the approaching train. L. & N. Railroad Co. vs. Hunt’s Admr., 142 Ky., 778; Murray vs. Southern Railway Co., 140 Ky., 453. The plaintiff’s evidence, therefore, taken in its details most favorable to him, did not make out a case to go to the jury.
The defendants did not stand upon their right to a peremptory instruction upon the conclusion of plaintiff’s evidence, but introduced testimony tending to establish the absence of knowledge that Eeynolds’ body
Upon the second trial the engineer testified that as a matter of fact he first saw the object when he was 600 feet south of it; that at 500 feet he discerned it was a man and immediately set his appliances to stop the train. Quinlan,- the brakeman who was sitting on the fireman’s seat in the engine cab, testified that they first saw the object at about 900 feet; that at about 600 feel Pearce, the engineer, said he believed the object was a man and' immediately applied the brakes. The train was 1,364 'feet long, of loaded freight cars, drawn by two locomotives, and at the time was running down a 1 ner cent- grade at twenty-five to thirty miles per hour. A‘11 defendants’ witnesses are pretty well agreed that the train could not have been stopped in a distance-shorter than from 1,400 to 2,000 feet. True, two witnesses for plaintiff gave it as their judgment that the train could .have been stopped in from 600 to 750 feet; but this seems to us a remote possibility under the evidence. As -was said in the case of L. H. & St. L. Ry. Co. vs. Jolly’s Admx., 90 S. W., 977, cited in the former appeal in this case: “The law does not look to bare possibilities. It requires no .more of the human machine than may be reasonably expected of it under the circumstances. When all the evidence as to what was done by those who witnessed the transaction's to the effect that
The judgment is. affirmed.