31 S.W.2d 729 | Ky. Ct. App. | 1930
Reversing.
Appellant instituted suit against the Louisville Nashville Railroad Company, John Whitsell, its engineer, and Moreland Burns, its fireman, in charge of its train at the time of the accident, alleging that the corporation and the individuals mentioned, through their joint and concurring negligence and carelessness in the management, *407 operation, and control of the engine and train described in the petition ran upon and over Ray Wimsatt, so injuring him that he was then and there killed as the direct and proximate result of the alleged negligence.
The answer denied negligence on the part of appellees and pleaded contributory negligence and assumption of risk on the part of appellant's intestate.
At the conclusion of the evidence offered by appellant, the trial court instructed the jury to return a verdict in favor of appellees, and the propriety of the ruling of the court is called in question by this appeal.
The pleadings and the proof show that the right of appellant to recover is based upon the last clear chance doctrine. At the time of the death of the intestate, he was a trespasser upon the railroad track in a thinly populated community where no lookout duty was imposed upon appellees. Appellees relied upon their affirmative defense, or rather their two affirmative defenses, that, as decedent was a trespasser upon the railroad track, he assumed the risk of injury, and that he was guilty of the only negligence which resulted in his death.
The accident occurred in Ohio county on a line of the appellee railroad company running from Ellmitch in Ohio county to Madisonville in Hopkins county. The date of the accident was April 23, 1929. The train that caused the death of Ray Wimsatt was what is known as a mixed train; that is, it carried both freight and passengers. The accident happened about 2 o'clock in the afternoon, or a few minutes before. The day was bright, and the sun was shining. About two miles east of Hartford there is a cut through which the railroad passes, known as Mitchell's cut. Near the west end of the cut a small creek passes under the line of railroad and is crossed on a short trestle. Westward from the cut is a level straight track for a distance of more than 1,500 feet.
Ray Wimsatt was a young man 34 years of age, the husband of appellant, who sues as his administratrix. He was subject to heart attacks, which came upon him unexpectedly and at times rendered him unconscious. He left his home on the morning of the accident, going to Hartford. He walked on the right of way, as was the custom of the residents in that neighborhood. Having completed his errands in Hartford, he started walking on the railroad track towards his home, and when he had journeyed *408 about two miles presumably, from the evidence, he had a heart attack which caused him to fall on the railroad track lengthwise between the rails. No one saw him fall, and there is some testimony that a broken bottle was found near the body apparently having contained whisky. The mixed train came out of Mitchell's cut more than 1,500 feet distant from where the body of Wimsatt was lying on the track. The train ran upon and over his body. The speed of the train was not more than 30 miles an hour. It was stopped after the engine, the tender, and two other cars had passed over his body. There were only four or five passengers on the train at the time of the accident. One of them was the drainage commissioner of Ohio county, who was going to his office in Hartford, another was a resident of Dundee, a little station on the railroad, while another was a traveling salesman, and another was a small boy.
The deposition of John Whitsell, the engineer, was taken as if on cross-examination; it was read. He testified that he did not see the man on the track until he was within four car lengths of him, and that immediately upon the discovery of the man he did everything that could be done to stop the train, and he enumerated each movement and step that he took for that purpose. He was evasive in his answers, and made a very poor witness. Many of the questions were answered by the simple statement that he did not know, when the matters inquired about were such as must have been within his knowledge, if not the exact information, that which was sufficiently approximate. No signal was given of the approach of the train after the discovery of the man on the track. If he was unconscious, as was indicated by his prone position on the track, a signal would have proven unavailing, but there is no one who testified that he was unconscious, although the inference that such was the case is probably conclusive.
The most important question for determination is whether those in charge of the train discovered the peril of Wimsatt in time to have avoided injuring him by the exercise of ordinary care. If there was evidence that the peril was discovered in time to have avoided the injury by the exercise of ordinary care, the case was one for the jury, but, if there was no evidence to that effect, the court was right in taking the case from the consideration of *409
the jury. It was not sufficient to show that the track was level and straight, and that the peril of Wimsatt could have been discovered by maintaining a lookout as he was a trespasser and no lookout duty was imposed upon those in charge of the train. Under the circumstances, it is a question of whether there was an actual discovery of Wimsatt in time to have avoided the injury by the exercise of ordinary care. The rule was so stated in the case of Davis et al. v. Crawford's Administratrix,
From where those in charge of a train see an object on the track which they do not at the time recognize as a human being, the rule seems to be that the duty to stop the train does not devolve upon its operators until they discover that the object upon the track is a human being.
This was so held in the case of Spiegle v. C., N. O. T. P. Ry. Co.,
"This, however, is not the rule in this state, as it has been repeatedly held by this court that, where trainmen discover an object upon or dangerously near the track and cannot tell what it is and there is nothing in the surroundings to impose the duty upon them to know what it is, the defendant does not have to check the speed of the train and proceed upon the assumption that the object may be a human being."
In the late case of Louisville N. R. R. Co. v. Ison's Adm'r.,
"The rule is firmly established in this jurisdiction that, where trainmen discover an object upon or dangerously near the track and cannot tell what it is, and there is nothing in the surroundings to impose the duty upon them to know what it is, the defendant does not have to check the speed of the train, and proceed upon the assumption that the object may be a human being."
In the case of Cincinnati, N. O. T. P. Ry. Co. v. Reynolds' Adm'r, 102 S.W. 888, 31 Ky. Law Rep. 529, the fireman testified that he and the engineer first saw the object on the track as the engine came over a hill about a half mile away. They could see the object, but could not tell what it was. The train proceeded until it was within 50 or 75 feet of the object, when they discovered that it was a man on the track. This court held that, unless the railroad company was bound to discover that the object which was seen on the track a half-mile away was a man, it was entitled to a peremptory instruction.
Another case dealing with the same subject is that of Louisville, H. St. L. Ry. Co. v. Hathaway's Executrix, *411
In the case of Goodman's Adm'r v. L. N. R. R. Co.,
In the case of Soward's Adm'r v. C. O. Ry. Co.,
*412"His discovery of the object certainly imposed upon him the duty of continuing to observe it to ascertain whether or not it was a human being."
The court held that the case should have been submitted to the jury to determine whether it would accept the fireman's testimony that he discovered the peril of the decedent too late to even try to prevent his injury and death. There was evidence that others some distance away saw and recognized the object on the track as a man, and the question was whether the fireman may not have recognized him as a man in time to have avoided the injury, as he had admitted that he saw him when he was 500 feet away. Another case relied on by appellant is that of Tennessee Central Railroad Co. v. Cook,
"The law does not impose upon those in charge of railway trains the duty to keep a lookout for trespassers, who may be upon the track in the country, away from public crossings; and hence, in order to hold the company liable for the injury, plaintiff must show, not that those in charge of the train were in a position to see, but either that they did see . . . or were in a position where they could not help but see, the perilous position of the trespasser."
The case of Louisville N. R. R. Co. v. Bell, 108 S.W. 335, 32 Ky. Law Rep. 1312, is one where a trespasser was on a bridge. She was forced to jump from the bridge, resulting in serious injuries. A verdict in her favor was upheld by this court. It was on the ground, however, that those in charge of the train could not help but see her perilous position. The evidence *413 showed that the track was straight and that the engineer had a clear view for a distance of several hundred feet. He was looking straight down the track. It was held to be a question for the jury whether the engineer saw the trespasser on the track in time to have stopped the train.
The case of Becker v. L. N. R. R. Co.,
"If the engineer becomes aware of anything lying upon or dangerously near the track, which may possibly be a human being or a valuable animal, he is bound to check the speed of his train so as to enable him to stop in time to avoid injury; and, if injury ensues from his neglect to do this, his sincere belief that the object was worthless is of no defense."
That statement appears to be slightly out of line with the general doctrine announced in the cases cited above, but the court did not have a case before it such as is described in the above quotation. The sole question in the case was whether the trainmen saw the trespasser on the bridge in time to have avoided the injury by the exercise of ordinary care. There seems to be no other pronouncement by this court that it is required of trainmen that they must slacken the speed of the train upon the discovery of an object on or near the track which may prove to be a human being. In the case of Johnson v. Sandy Valley Elkhorn Railway Co.,
"In a case like this, it is not sufficient to show that those in charge of the train might have seen the trespasser, but it must appear that they actually saw him. That they saw him may be established either by direct evidence or proof of facts showing that the circumstances and conditions were such that those in charge of the train could not have failed to see him. Tennessee Cent. R. Co. v. Cook,
146 Ky. 372 ,142 S.W. 683 . Thus it has been held that evidence that the injured party was on the track, that the track was straight, that the view for a long distance was unobstructed, and that the engineer was looking towards the trespasser was sufficient to take the case to the jury."
Other cases bearing on the question before us and all holding that a railroad company owes no duty to a trespasser until after the actual discovery of his peril are Louisville N. R. R. Co. v. Horton,
The rule is deducible from the cases cited that a railroad company owes no duty to a trespasser lying upon its tracks until the discovery of the peril of the trespasser by those in charge of the train, and that, after the discovery of the peril, the railroad company, through its agents and servants, owes to the trespasser the same duty that it owes to one lawfully on its tracks, and that means that it must exercise ordinary care to avoid the injury after the discovery of the peril. It is not left alone to the statements of those in charge of the train on the question of the discovery of the peril. Facts and circumstances, as well as direct evidence, may contradict the statement of those in charge of the train that they did not discover the trespasser in time to avoid the injury, and, in every case where the facts and circumstances render the evidence conflicting, it is a question for the jury to determine whether the peril of the trespasser was discovered in time to avoid the injury by the exercise of ordinary care. *415 It is not required of those in charge of a railroad train that they slacken the speed of the train upon the discovery of some object on or near the track not known to be a human being, but, upon the discovery of such an object, the trainmen should observe it from the time of the discovery until they may, in the exercise of ordinary care, determine whether it is a human being.
It remains to measure the evidence in the case now before us by the rules deducible from the cases cited. There is evidence that the railroad track was straight for more than 1,500 feet after the train emerged from Mitchell's cut and until it reached the body of Wimsatt lying on the track. The day was clear, and the time was between 1 o'clock and 2 o'clock p. m. There was no evidence that either the engineer or fireman was looking ahead. The engineer, whose deposition was read, would not say, but he did testify that he could not see ahead on account of the settling of smoke about the engine. He saw Wimsatt on the track and recognized that it was the body of a man when he was four car lengths from the place where the body was lying. He professed not to know the length of the car, which places him in the anomalous position of stating that the train was about four car lengths from Wimsatt when his peril was discovered and then admitting that he could not even approximate the length of a car. Other evidence tended to show that the length of cars ranged from 45 feet to 60 feet. This indicated that the engineer admitted the discovery of the body on the track when he was about 200 feet distant from it. He testified that he immediately exercised every means that he knew to stop the train, but he is contradicted in this by the testimony of the passengers, who felt no jar in the stopping of the train, and to all appearances, according to their testimony, the train made a natural gliding stop. A witness testified that the engineer, while the body was being removed from under the engine, made this statement:
"Mr. Whitsell (the engineer) in the presence of two other gentlemen just before the body was removed said when they come out of the cut they discovered the object, and when they discovered it was a man they were too close to stop."
It was admitted by the engineer at the time, and when his admission was a part of the res gestae, that *416 he and the fireman discovered the object on the track more than 1,500 feet away. The statement of the engineer that when he discovered that it was a human being on the track he was too close to avoid the injury does not have to be accepted as true against the facts and circumstances. When he discovered the object on the track, it is to be presumed that he kept it in view, and a jury may have reached the conclusion that he could not help but discover that it was a human being in time to have avoided the injury by the exercise of ordinary care. When this is coupled with the evidence of the witnesses, who discerned no sudden stopping of the train, the engineer is materially contradicted. He gave no signal of his approach, and does not claim to have given any. The train was running 25 or 30 miles an hour on a level track, and was made up of seven cars. He stopped it, according to his own evidence, in seven car lengths, and he did that without even jarring the passengers on the train. Omitting entirely the statements of the fireman and engineer testified to by Judge Dowell, the facts and circumstances were such as to constitute evidence of substance which authorized the submission of the case to the jury.
There is a question of the competency of the evidence of witnesses who offered to testify that the train could have been stopped within a certain distance. One of these witnesses testified that he had three years' experience in railroading in the capacity of a brakeman, and that he had frequently seen trains start and stop at different places in an emergency and otherwise. He offered to state the distance in which the train in question could have been stopped with safety to its passengers. Another witness had worked as a section hand for appellee for about five years, and he had seen mixed trains such as the one in question stopped many times at stations and other points. Another witness had worked for many years as a track laborer and section foreman, and he has seen trains stopped under such circumstances as existed at the time the engineer admitted that he discovered the peril of Wimsatt. Another witness had worked for another railroad company as a section hand for many years, and was acquainted with the stopping of trains of different kinds with different loads on different grades. Counsel for appellant rely on the cases of Chesapeake O. Ry. Co. v. Lane's Administratrix,
The cases mentioned establish a rule to govern trial courts in the admission of such evidence. If those who have been engaged in working for railroads have frequently seen trains stopped and have observed the distance in which they could be stopped, and this observation has been sufficiently frequent for the witnesses to deduce substantial knowledge as to the distance, we see no reason why they may not express an opinion on the subject. They must show that they have special knowledge *418 that gives some value to their opinion, or the evidence should not be admitted. It is a close question as to whether the evidence offered was competent. Probably some of it was and some of it was not, but, since the judgment must be reversed for other reasons, if the evidence is offered again, witnesses will be so examined as to determine whether they have special knowledge on the subject.
It is suggested by counsel for appellee that the evidence would have been of no value if it had been admitted, because it would have been in contradiction of the physical fact that the train was stopped with best effort possible within a distance of 280 feet. It is true that expert evidence is insufficient to contradict certain established physical facts. Louisville, H. St. L. Ry. Co. v. Jolly, 90 S.W. 977, 28 Ky. Law Rep. 989; Kentucky T. T. Co. v. Roschi,
Upon consideration of the whole case, we have reached the conclusion that the court erred in taking the case from the jury.
Judgment reversed, and cause remanded for proceedings consistent with this opinion. *419