85 Ky. 224 | Ky. Ct. App. | 1887
DELIVERED THE OPINION OF THE COURT.
This is an action by appellant to recover for the destruction of the life of his intestate, George Shelby, a boy about nine years of age, by the alleged willful negligence of the servants and agents of the •appellee.' And the question before us is, whether the lower court erred in giving, at the conclusion of the plaintiff’s evidence, a peremptory instruction to find for the defendant.
The intestate was killed by being run over by a box-car, on a side-track of appellee’s railroad, at •Junction City, in Boyle county, where the Louis
No signal or warning was given of the approach of the car to where the intestate was killed, nor does it appear that any servant of appellee was in a position to see or warn him, or any one else who might have been on the side-track in front of the moving car, which the evidence shows did not itself make enough noise to attract attention.
It appears that Junction City contains a population of about four hundred, and about twenty families reside south of the Louisville and Knoxville-road, who have been accustomed to pass along the side-track of appellee’s road, going to the part of the town north of the other road.
The right to maintain an action against a railroad company for an injury to the person always involves a breach of duty by the company or its servants, and its liability generally depends upon the place where, and the circumstances under which, the injury is done, and the situation and relation of the parties at the time. But there are certain well established rules which regard for human life will not allow to be relaxed.
It is the duty of the engineer in charge of a train moving, or about to move, to give timely warning of its approach to a crossing or other place where the public have a right to go. And it is no less his duty to use all necessary means consistent with the safety of those on the train to prevent injury to a person on the track in front of a train after his peril is discovered. And this duty the company owes even to a trespasser on its track. For while, as a general rule, he is required to use his eyes and ears to discover the approach of trains, he may nevertheless recover for an injury wantonly or intentionally inflicted on him.
Though in this case the injury was done not by a train drawn or moved by the engine, but by a single detached carp nevertheless it seems to us that it was as much the duty of some servant of appellee to be in a position to give warning of its approach, and to control its movement, as if it had been attached to a train; for its movement on the down grade was not only rapid, but without noise sufficient to attract attention.
As held by this court in Kentucky Central R. R. Co. v. Gastineau’s Adm’r, 83 Ky., 119, a railroad company is not required to anticipate the peril of a person who intrudes into its private yard; and undoubtedly a company may, without a breach of its duty to the public, move a single detached car by bumping or pushing, or suffer it to move by gravitation to a desired position on that part of its track at a depot or station where the public bave no right to go. But in this case the car was allowed to move without control at' a rapid rate of .speed a distance of near three hundred yards in a town ; and along a considerable portion of the track where it ran persons were in the habit of passing
There is some conflict of authority as to the extent of duty which a railroad company owes to pedestrians who, by license op custom, use its track to travel on. But unquestionably such fact should enhance the duty of the servants of the company to exercise caution and prudence in the operation of its road at such place. (Thompson on Negligence, vol. 1, 453.) And in our opinion, the full performance of duty requires that neither a train or single car should be moved at such place without some servant is in a position to give warning of its approach and control its movement.
The intestate, however, was not at the time he was killed using the track for travel from one part of the town to the other; but he was there upon business legitimately connected, at least indirectly, with the operation of the road, the performance of which the company must be presumed to assent to. For in transporting animals on a railroad it is necessary and customary for the owners to employ others than the servants of the company to feed and water them - at stations and stopping places. He had some time before his death been so employed, and at the time of his death was seeking the same employment.
In our opinion, therefore, he had a lawful right to go upon the track at that place, and the company owed to him a duty of active vigilance.
It is true he was upon the side-track near the rail next to the main track, and might have taken
In our opinion, the evidence introduced by the plaintiff made out a prima facie case, and the court erred in giving the peremptory instruction.
Wherefore the judgment is reversed, and the cause remanded for a new trial consistent with this opinion.