146 Ky. 568 | Ky. Ct. App. | 1912
Opinion of the Court by
Commissioner
Affirming.
Asbury Smith was struck and killed on December 21, 1907, by a train operated by the Cincinnati, New Orleans & Texas Pacific Railway Company. Charging’ that his death was due to the negligence of the railway company and its conductor, Thomas Quinlan, and its engineer, John Knosk, his' administrator brought this action to recover damages. Upon motion of the defendants at the conclusion of all the evidence, the court
The intestate was twenty-six years of age, and a deaf mute. He was a student at the Kentucky School for the Deaf at Danville. On the day of the accident, he hoarded appellee’s midday train at Danville for the purpose of going to Junction City and there taking passage via the Louisville & Nashville Bailroad for his home in Bowling Creen, Ky. Junction City is a town of about nine hundred inhabitants, and being the junction of the Cincinnati, New Orleans & Texas Pacific Railway and the Louisville & Nashville Railroad, a large number of trains pass there daily. These two roads cross' each other at right angles, the former running north and south, and the latter running east and west. Both roads use the same depot which is situated in the northeast angle of the two roads. In the northwest angle is the signal tower, a two-story building about fifteen feet and three inches wide. Prom the east side of the tower to the west rail of the C., N. O. & T. P. track the distance is fifteen feet. In the southeast angle of the tracks is the Tribble House, a hotel, and in the southwest angle is the McCullom House, another hotel. The west side of the McCullom House is several feet west of the tower. There is a well defined'pathway leading from the McCullom House along the side of the Louisville & Nashville track and across the C., N. 0. & T. P. track to the depot, which is situated in the northeast angle of the two roads. In proceeding from the McCullom House along the pathway, there is nothing to obstruct the view of a train approaching from the north on'the C., N. .0. & T. P. Bailway, until the tower is reached. Then the view is obstructed for the space of fifteen feet and three inches. When the tower is passed, the view of the track 'is unobstructed, and an approaching train may be seen for a distance of several hundred feet.
The intestate reached Junction 'City shortly after eleven o ’clock, A. M. Lie got off the train at the depot, and proceeded to the McCullom House to get something to eat. After procuring a ham sandwich'he came out of the hotel, walked north across the L. & N. track for a distance of thirty feet. He then turned to the east, and taking 'the footpath, proceeded in the direction of
As the engineer had the right to assume that the intestate would heed the warning of the approaching train and keep out of its way, it was not incumbent on him to stop the train until it became reasonably apparent that the intestate was oblivious of the danger. This did not appear until after the intestate emerged from behind the tower, and attempted to cross the track. It is, therefore, manifest that intestate’s peril could not
But this conclusion is not decisive of the case, for the rule is that where the railroad company is 'guilty of negligence in running its train too fast, and the party injured or killed is himself negligent in going upon the track in front of the approaching train, the injury is the result of the concurrent negligence of both parties, and there can be no recovery for the negligence of the railroad company, because but for the negligence of the party injured, he would not have been injured (Hummer’s Extx. v. Louisville & Nashville R. R. Co., 128 Ky. 492.) The same rule is laid down in Southern Railway in Ky. v. Winchester’s Extx., 127 Ky. 144. The question then is, was the intestate guilty of contributory negligence? The accident happened at a time and place not only where the presence of persons on the railroad track might have been reasonably anticipated, but the passing of the trains might have been reasonably anticipated. Therefore, the same rule applies' as in the case of a street crossing where the railroad and traveler are under reciprocal duties, requiring the railroad on the one hand to keep a lookout, to give reasonable warning of the approach of the train, and to have
All witnesses agree that the intestate never raised his eyes or looked in the direction from which the train was coming. Had he done so, he would have seen the approaching train. That being true, and having failed to use his eyes, when they alone could have made him aware that the train was approaching, he was necessarily guilty of contributory negligence, for notwithstanding the negligence of appellee in running its trains too fast, he would not have been injured had he not gone upon the track immediately in front 'of the train with
Judgment affirmed.