154 Ky. 820 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
Plaintiff, D. M. Thompson, as administrator of James Nelson Thompson, deceased, brought this action against the defendants, Illinois Central Railroad Company and its engineer, Sam Lawther, to recover for the
The evidence for plaintiff-is as-follows:
Alfred Armstrong testified that he, Melvin Crumbaker and the decedent, James Nelson Thompson, all of whom lived in Central City, were walking along the defendant company’s tracks between Milwood and Caneyville, in Grayson county, Kentucky. Growing tired, they sat down on the end of the railroad -ties to rest. Thompson and Crumbaker sat down first, and soon went to sleep. There was a tie or two between them. Witness dropped his knife, and after looking for it he too sat down one or two ties above them. It was then about day-light on the morning of August 28, 1911. While they were asleep and sitting in a stooped position on the end of the ties close to the track, passenger train No. 132 came along and struck Thompson and Crumbaker. The first thing he knew he was upon the bank of a small cut near the railroad track. He was asleep when the train struck the other two boys, and did not see them at that - time and did not' know what position they were in. The train knocked the other two boys down the track some distance. The train ran past them and stopped with the baggage ear near them.
George White, Who lived, about 30 steps from the railroad, testified that he was standing on his porch at the time the train passed. He heard the train whistle at his gate as if something was on the track, and saw the train stop. He went to where the boys were struck by the train. The train did not slacken its speed when it commenced whistling. The distance from the gate to the telephone pole where the train commenced whistling was, bf actual measure, 1581-3 yards, or 475 feet, from the place where the boys were struck. It was after daylight when the accident occurred, and the train was going up grade.
Mrs. George White, the wife of George White, testified that she saw the train before it struck the boys, and saw it stop. The bell was ringing and the whistle blowing so much that she knew there was trouble. The train continued to whistle from the time it began until it stopped;
Tom Stanfield, a brakeman, who had had twelve months’ experience in running on the Hlinois Central
As the accident occurred out in the country, it is admitted that the decedent and his companions were trespassers, and the defendant owed decedent no duty except to use ordinary care to avoid injuring him after his peril was discovered. Plaintiff’s case, therefore, depends upon whether or not there was sufficient evidence on this point to take the case to the jury.
It is earnestly argued that as the proof shows the engineer began to give the alarm signals when he saw the boys, and furthermore that it was possible to stop the train in from 75 to 100 yards if going at a speed of 23 miles an hour, and from 125 to 150 yards if going at 45 miles an hour, there is sufficient evidence to take the case to the jury. There is practically no evidence, how
Furthermore, the schedule time of a train is the regular time, including the time consumed in stopping at stations. Therefore, the schedule time of the train is by no means conclusive of its actual time. The actual time is generally somewhat in excess, and frequently far in excess, of the schedule time. In this case the only direct evidence' of the' actual speed of the train is the statement of the engineer that it was going at the rate of 45 miles an hour. While the boy who was not injured says that the intestate and the other boy went to sleep in a stooping position, there is no evidence tending to show their position at the time that the train actually struck them. The engineer says that when he saw them he immediately sounded the alarm. The train was moving very rapidly. The boys were only about 158 yards distant. The act of ringing the bell and blowing the whistle necessarily consumed some time. Furthermore, the law did not require the engineer to apply his brakes until he had given the alarm, and it was then reasonably apparent to a person of ordinary prudence, situated as he was, that the boys were unconscious of the approach of the train. As a matter of fact, the train did stop with the baggage car near the boys. Giving full effect to the evidence for plaintiff, though it bears the ear-marks of speculation rather than of sound judgment, it merely tends to prove that the train could have been stopped between the point at which the engineer saw the boys, and the point at which the accident occurred. It does not show that after the lapse of time necessarily consumed in giving the alarm signal, and after it became reasonably apparent to a person of ordinary prudence, situated as the engineer was, that the boys were unconscious of the approach of the train, he could, in the exercise of ordinary care, with the means at his command, have stopped the train in time to avoid injuring the intestate. Reynolds’ Admr. v. C., N. O. & T. P. Ry. Co., 148 Ky., 252; Creager’s Admr. v. I. C. R. R. Co., 134 Ky., 543. It follows that the peremptory instruction was properly given.
Judgment affirmed.