84 Ky. 43 | Ky. Ct. App. | 1886
delivered the opinion of the court.
Iii this action by the administrator of Elizabeth Shackleford against the appellee, the Louisville & Nashville Railroad Company, to recover damages for the killing of the intestate, by being run over by one of its trains, through the alleged willful neglect-of those in charge of it, the lower court, at the close-of the appellant’s testimony, peremptorily instructed the jury to find for the appellee.
This was improper if the evidence tended in any degree to support a right of recovery. If, however, \ there was an entire absence of negligence upon the-part of the appellee, then the court’s action can not be disturbed.
It appears from the evidence that the deceased was not in the employ of the company, but was living at' a section-house belonging to it,, doing gen-
At about seven o’clock on the morning of October 7, 1883, the deceased came out of the kitchen door of the section-house onto the porch, wearing a sun bonnet, and carrying a bucket in each hand. When she did so, the engine.of the appellee’s train — which was not a regular, but a “wild” one, and transport
It is certain that those in charge of the train after discovering her danger, if indeed they knew of it at all until she was' struck by the engine, could not by the exercise of the greatest care have avoided the injury.
It does not appear that they even knew of her presence until the moment of the accident; and if they had seen her when she stepped from the- kitchen door onto the porch, and had then known that she was about to go upon .the track, they could not have saved her.
As a matter of law, however, the appellee had the exclusive right to the use of the road at that point; it was not bound to anticipate the presence there of the deceased; and it could only be held liable if those in charge of the train, after discovering her danger, could, by the exercise of proper care, have avoided the injury.
The testimony of the appellant shows that persons
It is urged, however, that the train was running ' at an unusual rate of speed; that it sounded no whistle at the county road crossing, and gave no alarm at the neighborhood crossing two hundred yards distant, or as it approached the house; and if it had done so, the deceased would have been warned, and her life saved.
She was not injured, however, at a place where the public had a right. to be, but at a point upon the track where the right of the company was exclusive, and where a reckless use would not necessarily endanger the lives of persons as would be the case in a town or upon a public thoroughfare. The speed of the train under such circumstances can not’ constitute neglect as to one who voluntarily places himself upon the track, and where he has no right to be, and .thus carelessly exposes himself to injury.
Railroad trains must give the customary signals at public places or public 'crossings. The failure to do so is negligence; but this is required for the safety of passengers, trainmen and the public using, and who have the right to use, the track at such public ways, and not for the purpose of protecting those who, as trespassers, may be crossing or using the track elsewhere.
The instances are numberless upon every railroad of persons living along it, and having to and being
Whether any negligence whatever upon the part of the appellee had been' shown was a question for the determination of the lower court; and, in our opinion, the evidence not only failed to establish it, but evidences such contributory neglect upon the part of the deceased, that but for it the unfortunate accident would not have happened.
Judgment affirmed.