142 Ky. 400, 34 L.R.A.N.S. 678
Court of Appeals of Kentucky.
Feb. 22, 1911.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County.
Action by J. Wesley Bays' administrator against the Louisville & Nashville Railroad Company.
Judgment for plaintiff, and defendant appeals.

Four Mile is a station on the Louisville & Nashville railroad about 17 1/2 miles west of Middlesboro. In September, 1907, J. Wesley Bays, and a number of others, went from Four Mile to Middlesboro. Bell county is dry, but whisky is sold at Middlesboro. The party left Middlesboro for Four Mile about 10 o'clock at night on the regular passenger train. Bays had a half gallon of whisky, and the others of the party had, some more, some less. The train reached Four Mile about 11 o'clock, or a little before. When they got off the train at Four Mile, it was very dark and rainy. They lived several miles from the station, and after the train left they all remained under the station platform shed. The county road ran just south of the depot, and only a few feet from it. North of the depot, and about as far from it as the county road, is the main track of the railroad, and a few feet further north is a side track, called in the record the "loading track." About 30 feet south of the loading track, and opposite the shed, is a restaurant. West of the restaurant, and adjoining it, is a store and the post office. About 12:50 that night, a switch engine pushed some cars in on this loading track past the depot up towards the western end of that track. Shortly after this train was pushed in, Bays said to a friend that he would go over to the restaurant and get them a lunch. He then went down the steps of the platform and started across toward the restaurant. Two other men about the same time started across following Bays to get them a watermelon. As these men got near the loading track, the switch engine, which had been cut loose from the cars it had taken in, was backed out and dashed past them, just before they reached the track. As the engine passed them, they saw the back of a man on the far side of the track whom they took to be Bays. After the engine passed, they went on into the restaurant, not supposing that Bays was hit. Not long afterward, however, Bays' body was found on the loading track about 75 feet east of where he was last seen, and from all the circumstances it may fairly be inferred that he was caught by the engine and carried by it to the point where he was found and there run over. This action was brought by the administrator of Bays against the railroad company to recover for his death on the ground that he was killed by reason of its negligence. The proof for the plaintiff on the trial by the members of the party who testified was to the effect that there was no light on the rear of the engine as it backed in, that no signal was given of its approach, and that it came very fast. The proof for the defendant was to the effect *451 that the engine had a headlight in front and a headlight on the back of the tender; that the bell of the engine was ringing; and that it was running about 8 or 10 miles an hour. The weight of the evidence as to the light on the tender and the ringing of the bell is with the defendant, but its evidence shows that there was nobody on the rear of the tender as it was backed; that the fireman was ringing the bell; that the engineer was at the throttle; and that neither of them could see a person on the track over the coal that was piled on the tender. The circuit court, refusing to instruct the jury peremptorily to find for the defendant, instructed them in substance that, if the place where Bays was struck was a place where the presence of persons on the track should be anticipated, it was the duty of the defendant to give reasonable notice of the approach of its engine, maintain a proper lookout, and run the engine at such speed as ordinary care for the safety of such persons required. The jury returned a verdict in favor of the plaintiff for $5,500, on which the court entered judgment. The defendant appeals.

The only question we deem it necessary to consider on the appeal is whether a peremptory instruction to find for the defendant under the evidence should have been given. This court has in a number of cases held that a lookout duty on railroad engines and cars exists in incorporated cities and towns and other places where the presence of persons on the track should be reasonably anticipated; also that, where the lookout duty exists, the engine and cars must be run at such speed and under such control that the lookout will be serviceable in case danger is seen; that a lookout is not sufficient where the person looking out is not in a position to see; that reasonable warning of the approach of the train must be given; and that the backing of the cars or an engine in the dark without a light in front in such localities is negligence. The court has also held in a number of cases that the railroad company owes no duty to trespassers on its tracks at other places, except to avoid injuring them after their danger is discovered.

It is plain that the danger to Bays was not discovered, and that if he was a trespasser no recovery can be had for his death unless the place at which he was struck was one where a lookout duty was required. While Bays was a passenger when he reached Four Mile, his rights as a passenger ceased after he had had a reasonable time to leave the station. He and his friends could not remain under the station platform indefinitely as passengers. The accident occurred about two hours after he reached the station, and they were not then under the shed as passengers. They had no more right then to use the tracks of the railroad company than if they had never been passengers on the train. So the case comes to this: Was he at a point where the railroad company owed him a lookout duty? The proof for the plaintiff on the trial showed that Four Mile is a straggling hamlet, unincorporated, without a street or an alley, consisting of about 20 or 25 houses; that a spur track turns off there and goes up Four Mile creek to some coal camps about three miles off where 1,000 or 1,200 men are employed; that another spur track turns off near there, which goes to the Jellico mines, some miles further away, and across Cumberland river, where a number of miners are also employed; that, from both of these mines, persons come to Four Mile to take the train, and many of them in coming walk along the railroad tracks to the station; that about 1,000 tickets a month are sold at the station; and that the tracks about the station and approaching it are much used by pedestrians. But this proof as to the presence of persons on the track relates mainly to train time, ordinary business hours, and a reasonable time thereafter. There is no proof of the use of the track by pedestrians at a late hour of the night to any considerable extent. The restaurant referred to usually closed at 10 o'clock. On the night in question, it had remained open because it was pay day at the mines, and some miners who had come in had remained there eating, etc., on account of the storm. We think the evidence well warrants the conclusion that about train time there was such a use of the tracks about the station that a lookout duty was then required as to persons coming to the trains or otherwise lawfully using the station grounds; but here the passenger train had passed two hours before, and there was no train to stop at this station for a number of hours. The proof tends to show that the railroad tracks all about the station were used by people, and there is nothing in the evidence to show that the point where Bays was struck was any more used than other points about the station, or near it, except the fact that the restaurant and post office were near there. Most of the houses in the place were on the same side of the railroad as the restaurant; but the depot was on the other side, and there was of course much passing from or to it about train time, and more or less such passing during business hours at the depot, but not in the late hours of the night. By reason of the fact that the coal from the mines referred to was brought to Four Mile and there put on the trains, the side tracks and yards there were much used by the railroad company. The point where Bays was struck was in the yard. It has been well said that a railroad track is a signal of danger, and that those who trespass upon a railroad track take the risk unless it is at a point where a lookout duty is imposed. This must be especially true in a much used yard of a railroad company, where, from the necessity of the business the engines and cars must be constantly moved about. So the case turns on the question whether on the facts shown the railroad company owed Bays a lookout duty. The answer to the question must depend upon the law as it has been heretofore laid down by this court in the cases decided by it.

If the railroad company did not owe the deceased a lookout duty, it violated no duty which it owed him. If it owed him a lookout duty, it owed a like duty at all points in its yard, or near its yard; for under the evidence we do not see that a line could be drawn anywhere, and it could be said that a lookout duty existed on one side of the line and not on the other. At this late hour of the night, it cannot be said that the railroad company was under a duty to anticipate the presence of persons on its tracks, and under the evidence the court should have instructed the jury peremptorily to find for the defendant.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

Ky.App. 1911.
134 S.W. 450, 142 Ky. 400, 34 L.R.A.N.S. 678


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