172 Ky. 650 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
The appellee is a corporation, which owns and operates a traction railroad line, upon which interurban cars are used, from Versailles to Lexington. Through the streets and city of Versailles the railroad line is upon the public street, but after leaving the city, the railroad is constructed, at least for some distance, parallel with the Versailles and Lexington turnpike, hut not upon the turnpike road, in fact, nine hundred and fifty feet in the direction of Lexington from a point opposite the residence of one Brown, the car-line leaves the center of the turnpike and thereafter is constructed, in proximity, to the turnpike, but, at what distance from it does not appear, except, where it passes over the crossing from the turnpike into the residence, which was occupied by the deceased, H. C. Stull, the railroad track is nineteen feet from the center of the pike. From Brown’s residence the road passes down a decline, which amounts to thirty-one feet in nine hundred and fifty feet, hut at the end of the nine hundred and fifty feet, where the road-passes from off of the pike, there is a slight up-grade of four or five feet in nine hundred feet, to the crossing
It is insisted by the appellant, that the railroad company owed the decedent a lookout duty, at the time and place, when and where he was killed, and it is conceded, that if a lookout duty was not owed to the decedent by the ones who were operating the interurban car, that the appellant has no cause of action and the motion for a direct verdict was properly sustained, but, that if the ones operating the car owed a lookout duty to the decedent, then the evidence of their negligence was sufficient to have required a submission of the case to the jury. The crossing, at which decedent lost his life, seems to have been merely a private crossing, and used only by him and his family. It is not shown that the railroad company was in the habit or had made it the custom of giving any signals of the approach of its cars to this crossing, upon which the decedent could have relied. Neither is it shown that there was any public crossing, at which the railroad company was required by law to give signals of the approach of its cars, or at which it customarily gave signals, which was in such proximity to the private crossing of the decedent, that he could have relied upon any signals at the public crossing. There is no evidence, which tends to show that the private crossing- of decedent was created by any contract with the railroad company, or that it was used in reliance upon any contract to that effect. It does not appear that the railroad company ever recognized the crossing, in
It is a well settled rule of the law of negligence, that it is never presumed. To sustain a recovery against another because of negligence, the negligence must be proven. Either acts of negligence, which were the proximate cause of the injury, must be proven, or such facts must be proven from which negligence can be inferred. Hughes v. Cincinnati, etc. R. R. Co., 91 Ky. 526; Wintuska’s Admr. v. L. & N. R. R. Co., 14 R. 579, 20 S. W. 819; L. & N. R. R. Co. v. Vittitoe’s Admr., 19 R. 612, 41 S. W. 269; Morris’ Admr. v. L. & N. R. R. Co., 22 R. 1593, 61 S. W. 41; Conley v. Ennis’ Admr., 170 Ky. 125. Negligence is the failure to perform a duty, which one owes to another, and where one does not owe to another the duty of performing an act, then there is no negligence as to such person in failing to perform such act. C. & O. Ry. Co. v. Nipp’s Admr., 125 Ky. 49; Schulte v. L. & N. R. R. Co., 128 Ky. 627; C. N. O. & T. P. Ry Co. v Harrod’s Admr., 132 Ky. 445; Watson’s Admr. v. C. & O. Ry. Co., 170 Ky. 254. Hence, before appellee could be held culpable, as for having caused the death of decedent by a negligent act, or by a negligent failure to perform an act, it must appear that the appellee failed to perform some duty, which it owed to decedent, and the failure was the proximate cause of his death.
, Under the settled law of this jurisdiction, the duties required of persons who operate railroad trains, when
Hence, the appellee not owing a duty to the decedent of giving warning of the approach of its cars, nor of moderating the speed of its cars, nor of maintaining a lookout for him upon the crossing, the failure to perform these acts cannot be imputed to the appellee, as negligence, and the only way in which negligence can be attributable to the appellee is, that, if after having seen the peril of decedent, in time to have prevented injury to him, the servants of appellee operating the car failed to exercise ordinary care to use all the means of which they had command to avoid injury 'to him. C. & O. Ry. Co. v. Hunter, supra; Speigle v. C. N. O. & T. P. Ry. Co., 32 R. 785. The proof by appellant shows, that the motorman maintained a constant lookout upon the track in the direction in which the car was proceeding, and while there is no direct proof to the effect, that he ever s,aw decedent, until he was upon the crossing, it may be inferred that as decedent was traveling upon the pike, which was near to the track of the railroad, he was necessarily included within the scope of the vision of the motorman, but it cannot be assumed that the motorman knew that decedent would undertake to cross the track, at any place, or had any reason to believe that he intended to pass over the crossing. It is only reasonable, that the motorman would assume, and he certainly had a right to do so, that decedent would exercise ordinary care and prudence for his own safety, and would keep out of the way of the car, which was so near by and within his sight, if he would but look toward it. It does not appear, that there was any reason to lead the motorman to believe that decedent would attempt to
Furthermore, it was the duty of decedent when approaching the crossing to use such care for his own safety, as may be usually expected of an ordinarily prudent man, to learn of the approach of a car, and to keep out of its way, and if he failed tó exercise such care, and but for such failure he would not have been injured, he so contributed to his death, by his own negligence, that no recovery can be had because of it. The proof shows, without contradiction, that decedent was possessed of all his faculties; that when he approached the railroad track, the car was necessarily very close to him, and in plain view. If he did not see it, he could have done so by the exercise of the slightest care. He had but to raise his eyes toward it. He was' then in a safe place, and had he only stopped he would have been unharmed. He either did not exercise the prudence of looking toward the oncoming car, or else he-saw it and took the chance of getting over the track before the car approached and failed. In either state of case, he failed to exercise ordinary care for his own safety. It has been oftentimes held, that to go upon a railroad'track, just in front of a train, which is rapidly approaching, and which is seen and known to be approaching, or which' could be known and seen to be approaching, by the. exercise of ordinary care for one’s own safety, is such negligence, that no recovery can be had of the railroad company for the injury or death of the person, who is thus negligent. C. & O. Ry. Co. v. Hunter, supra; Southern Ry. Co. v. Winchester, 105 S. W. 167, 32 R. 19; Louisville, etc. Ry. Co. v. Taylor, 31 R. 1142; Same v. Ueltchi’s Admr., 97 S. W. 14, 29 R. 1136.
The judgment is therefore affirmed.