25 Ky.L.Rptr. 1986
Court of Appeals of Kentucky.
GREGORY v. LOUISVILLE & N. R. CO.
March 10, 1904.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County. "To be officially reported." Action by Aaron Gregory against the Louisville & Nashville Railroad Company. From a judgment in favor of defendant, plaintiff appeals.

O'REAR, J.

Appellant was in the employ of appellee as a member of a section gang. He lived on the railroad, one to two miles south of Artemus Station, in Knox county. On the morning of October 10th, as he was going along the railroad track from his home to the section toolhouse north of the station, where he was to begin his day's work, he was struck by a rapidly moving train upon the main track, and thrown partially under a moving train on the parallel side track, by which latter train his foot was mangled, and he was otherwise hurt. The injury occurred about 2,000 feet south of the station. The morning was very foggy. The track at that point curved. The long freight train on the side track, by reason of the curve, and possibly to some extent by reason of the fog, obstructed the view on the main track so that in the direction from which the train was coming it could not be seen more than 30 or 40 yards distant. Appellant was going toward the train that hit him, but failed, for the reasons stated, to see it in time to get off the track to avoid being struck. Artemus is a small unincorporated village, having some 20 or 30 families living in it. It is built stragglingly along the railway right of way and about the depot. Running about parallel with the railroad, and from 10 to 20 yards distant, was a public highway that crossed the railroad track north of the depot and near the toolhouse. Appellant's course was north. Between the main and side tracks was a space of 9 to 11 feet, where one could have walked with perfect safety from passing trains. The locomotive that struck appellant had whistled for the station, and had slowed up there. After passing the station some 100 or 150 yards, it increased its speed suddenly and considerably until when it struck appellant it was running 25 or 30 miles an hour. At the point where appellant was struck there were no houses. The limits of the village had been passed. It is not claimed that the engineer or other person on the train striking appellant saw him in time to have possibly averted the injury. The following matters are claimed as negligence:

(1) That in running the train through the "town" it was run at a recklessly high and dangerous rate of speed, the railway company's servants knowing that the track at that point was frequently used by footmen as a passway;

(2) that there was no adequate signal of the approach of the train; and

(3) that the engineer on the other train had just a moment before the accident seen appellant walking on the main track meeting the coming train, and failed to warn him of his danger.

As for the first contention, the train was not at the time of the injury running through a town or village. The speed of a train in the country is not a matter that can be negligence to trespassers on the track whose presence is unknown. The fact that footmen sometimes, and very frequently, used the tracks everywhere, cannot be held to give them any right to do so, nor can that fact lessen the right of the company to run its trains over its tracks without taking their possible presence into consideration. The proof in this case shows a state of facts of common existence. Many people in small villages along railways, and those living near the railway, are constantly using the tracks to walk along. There is no way to keep them from it. Appellant's contention that the railway company should run its trains having in view the safety of these trespassers would be to practically abandon the road to them. If at every curve, bridge, tunnel, cut, and fill not plainly in view for a long distance the train would have to slow up, give signals and warnings, and take extraordinary precautions on account of possible trespassers, because other trespassers were in the habit of using the track, it would so retard as to practically destroy the railroad business. On the contrary, it is the duty of these common carriers to serve the public by the diligent use of their tracks and means. Their duties are onerous, and they are necessarily held to a high standard of strict performance in their discharge to the public with whom they must deal. To impose upon them this additional and extraordinary burden of policing their whole line of tracks, or to run their trains so slow and with such frequent warnings as to guard the safety of trespassers, would be equivalent to turning the right of way into a public highway for footmen. Such a rule would be against the public policy, that considers alike the welfare of the public in securing to it rapid and safe service from the carrier as well as the preservation of human life. The public, by such unauthorized use, acquires no right to use the railway as a highway. The localities in which the public may be said to acquire such right of passing over the company's tracks by license must be understood to be those communities so populous, and where the use is so general, as reasonably apprise the company that in every probability some one is likely to be found on the tracks at such point.

Whether there was a signal or warning of the approach of the train was not proven. The most that was said on that point was by appellant, who said he did not hear any signal. But he also said that, owing to the noise being made by the locomotive of the train on the side track, which was only a few feet distant from him, he could not have heard the signal if it had been given. Nor does the situation, as proven in the record, show any necessity for the giving of a signal at that point. There was no road or street crossing near, and no houses where people would likely be passing from across the track.

Of the third ground of negligence relied on it may be said there was no evidence to show that the engineer of the freight train on the side track knew that the other train was about to pass there at that moment; nor that he knew that appellant was unaware of its approach; nor that he suspected that appellant was going to continue on the main track in the face of an approaching train. We do not mean to hold that the servants of a railroad company may not use its tracks in going to and from their proper places of employment, and that they are licensed to do so to a necessary extent. However, this would not relieve them from the duty to care for their own safety by taking the safer of two or more ways equally accessible to them.

There was no proof of negligence whatever against the appellee. Even if there had been proof of such negligence, appellant shows such contributory negligence that precludes his recovering in this case. Not only did he have the public highway to walk upon, but there was ample safe space between the tracks for him to have traveled. He, for his own convenience, left his proper place of travel, and took up a dangerous one instead, knowing that it was dangerous, and knowing that the track was being constantly used by trains. But for his own negligence his injury could not have occurred. There cannot be two ways of looking at that. The peremptory instruction at the close of plaintiff's evidence was proper.

Judgment affirmed.

Ky.App. 1904.

GREGORY v. LOUISVILLE & N. R. CO.

79 S.W. 238, 25 Ky.L.Rptr. 1986



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