#### Cincinnati, New Orleans & Texas Pacific Railway Company, et al. v. Smith’s Administrator.

(Decided January 28, 1916.)

Appeal from McCreary Circuit Court.

1. Trial — Peremptory Instruction. — A peremptory instruction to find for a defendant is not authorized, at the close of plaintiff’s evidence, unless, after having admitted the truth of the evidence conducing to support plaintiff’s cause of action, and every reasonable deduction from the facts established by such evidence, there is yet no evidence to support his cause of action.

2. Negligence — Personal Injuries — Evidence.—Where the evidence offered conduces to prove acts of negligence by the defendant, which resulted in injury to plaintiff, a peremptory instruction to find for the defendant, at the close of all the evidence, is not authorized, unless the proof of the facts, which are asserted to show the contributory negligence of plaintiff, is undisputed; and the facts being admitted, they are such that men of like intelligence and judgment will not draw different conclusions from them.

3. Railroads — Notice of Presence of Workmen on Track — Lookout.— Where an independent contractor is doing construction work for a railroad company, and has in his employment a number of men, whose duties take them upon the railroad track, and in close proximity to it, the railroad company is charged with notice of their presence, and it is the duty of the employes of the railroad company, in the operation of the trains, to anticipate the presence of such workmen upon the track and in dangerous proximity to it, and to exercise ordinary care to avoid injury to them, by giving reasonable warning of the approach of the trains, to operate the trains at a reasonable rate of speed, and to keep a lookout for the presence of such workmen upon the track, and to have some person in a position to control the train, when passing the place at which the work is being done.

TYE, SILER & GATLIFF, EDWARD COLSTON and JOHN GAL-VIN for appellants.

DENTON & FLIPPIN for appellee.

Opinion of the Coubt by

Judge Huet

— Affirming.

On the 10th day of August, 1912, William Smith, a youth of seventeen years- of age, was run over and killed by one of the trains operated by the appellant, Cincinnati, New Orleans & Texas Pacific Railway Company and its engineer, Samuel Bryant. James A. Smith, the administrator of decedent, instituted this suit in the Mc-Creary circuit court against the appellants to recover *186the damages .lo Ms estate, wh-ich-were- -alleged--to Rave arisen from his-death.- The’facts of the occurrence are substantially as follows:

> “Prom a quarter to a half mile south of Greenwood the appellant’s track passes through two cuts, which are from thirty-five to forty feet in depth. The two cuts are separated by a ravine and are just fifty feet apart. For ■ three months before the death of decedent the appellant ' railroad company was engaged in widening these cuts so as to admit of laying down another track .alongside of the original track. The Mason & Hanger Construction. Company was performing this work under.a contract with the railroad company. The construction company held the- attitude of an independent contractor, and was answerable only to the appellant for the final result of the work. There were several gangs of men engaged 'in working,'each of which operated'under a foreman in the' employ of the’construction'company.' Two of the . squads of men worked in the. day.and tvo of them worked . in the night. . A squad was engaged at all times,- both day and .night, in- working in the. north cut or the. one ■ nearest to Greenwood, and a similar squad was engaged ■ in a similar way in working in the - south cut or the one farthest from Greenwood. The'widening of'the track was done upon 'the east side ' of the 'cuts ánd was performed by the construction company’s employes, by blasting 'and other methods,’ reducing the ground, upon . the east sidé of the .cut, for a sufficient, width to lay down .another track, to the level of the original .track. To do .this,'-they would remove a depth of- about eight or ten feet of earth from one end of the cut to the other. At the time of Smith’s death the north cut had been widened, down to within eight or ten feet of the level of the original track, eseept for a short distance upon the south side end. Proceeding from Greenwood,'the roadbed extends in a straight line through the first cut and substantially a straight, line for about two hundred feet through the second cut, where it makes a gradual curve to the eastward until it passes out of the. south cut. Each of the squads of men consisted-of from seventeen to twenty mem -. In performing the work of widening the track, blasting .materials were- used and oftentimes re- -. suited in obstructing the railroad track with -stone, slate -and dirt. It was the-/duty of - the-construction company ■to-keep the track-clear as much as-possible, so as not *187to obstruct the passage of trains, and when the road would become obstructed in one of the cuts, the foreman in charge of the work at that point would send a man out on the track to the southward and one to the northward to stop any train which might be coming in either direction, -by giving them a signal of the danger, and at the same time he would summon the squad working in the other cut to come to his assistance in removing the obstruction from the track. In the north cut, as it originally was, there was a ditch upon each side of the track and a space of several feet between the end of the ties and the wall. In widening the track, these ditches had become filled with dirt and stone, and on the west side of the south cut and extending about one hundred and fifty feet from the exit at the south end of the cut, this stone and dirt was piled up against the west wall of the cut to a depth of eight or nine feet and extending at an angle of about forty-five degrees down to the edge of the track. Between three and four o’clock in the morning. a blast was made in the south cut, which tore down such a' quantity of stone and dirt that the track at that point was obstructed. ■ When this occurred, Norman, the forexhan of the work at that place* directed the decedent, Smith, who was one of the men working in that squad, to proceed to the north, with directions to flag any southbound train. At the same time, he sent a man to the. south of the cut to flag any north-bound train, and likewise summoned the squad, which was engaged in the north cut to come to his assistance, which they immediately did,' except that the foreman in charge of the work in the north cut left a colored man to watch over and take care of the mules, which were being used in the work at that point. The colored man and the mules were upon the bank on the east side of the cut, which was about ten feet above the level of the track, and about thirty-three feet from the south end of the north cut. The decedent provided himself with two lanterns, one of which gave a white light and the other-a red light, to be used in warning any south-bound train, and proceeded from the place of the obstruction, in the south -cut, into the north cut, thirty-three feet from its south end, where, he stopped and set the two lanterns down between, the rail's, upon the- track, the lantern which gave the red light being situated nearest to' the south end of the north cut. He there leaned back against the sloping bank upon *188tlie west side of tlie track arid engaged in a conversation with trie colored man, wrio was upon trie opposite side npon trie bank ariont ten feet above riim, and, also, while there smoked two cigarettes, one of wriicri lie riad just finished smoking at trie time lie was killed. After trie two sqnads of men riad been engaged for abont three-quarters of an hour in removing trie obstruction from trie track in trie south cut, a passenger train, with five coaches and engine, came from trie south, when trie flagman sent out by trie foreman on trie construction work in trie south cut, signalled trie train and it slowed down and stopped before arriving at trie obstruction. Trie engineer upon this train then blew a signal with trie whistle for his own flagman to go to trie south and protect trie rear of his train' from any train coming from trie south. After trie train had been there for about fifteen minutes trie obstruction was removed, except a large sand stone, wriicri riad fallen very near trie track, and trie men, after knocking off trie projections from it, which they thought would interfere with trie passage of trie train, informed trie engineer that they thought he could pass it by proceeding very slowly. Trie engineer then called in the flagman to trie train by a long blast upon trie whistle, upon trie engine, and after trie flagman riad arrived and gotten upon trie train, the train proceeded to move very slowly, at a rate of speed of probably three or four miles an hour on past trie sand stone, while foreman Smith stood by trie stone to signal riim in trie event of trie train coming in contact with it, and when it passed trie stone, he then signalled trie engineer that trie train riad passed trie stone. It was about nine hundred feet from where trie obstruction on trie track was to trie point where decedent was and down grade all trie way. Trie evidence for the appellee is that trie train approached trie place where trie decedent was at trie rate of from three to four miles an hour, while trie evidence for trie appellants is that by trie time trie train riad arrived where decedent was, it was moving at,from ten to twelve miles an hour. Trie evidence for appellee is, that after starting from where trie train was standing, before trie obstruction was removed, and from there on to trie point where decedent was, there was no warning of any kind of trie approach of trie train, by either whistle or bell, and trie evidence for trie appellee is that trie bell was constantly ringing. 'Trie evidence.for ap-*189pellee is, in substance, that the train approached the decedent so quietly, and to him so suddenly, that he did not discover it until it was immediately upon him, and although he endeavored to do so, he was not able to escape from it and was run over by the train, both of his feet and hands being cut off and his head crushed and he was instantly killed. In addition to the red and white lanterns, which the decedent.had set between the rails of the track at the point where he was, there were, also, located at that point four oil torches, which were used for and sufficient to make light for the squad of men engaged in the work at that place. The evidence for the appellants is, by the engineer, that he was looking backward toward the sand stone beside the track to observe the signals to be given him in the event of the train colliding with the stone and when he should pass it safely, and when he had received the signal that the train had passed, he sat up in the cab and looked before him upon the road, but that he did not see the decedent, nor did he observe the light between the tracks, neither did he see any other light, except a white light upon the bank, and the first he knew any tragedy had occurred was when, after passing the point where decedent was struck by the train, that the fireman said to him that they had hit something or run over something, when he immediately stopped the train and the fireman proceeding to the rear of the train, found the decedent lying in the ditch beside the track.. The fireman, who, when a lookout duty is required, is so often engaged in replenishing the fire, was engaged in this occupation after the obstruction was passed, and saw nothing upon the track of any kind. It should also be stated that the ditch on the west side of the track in the north cut had been cleaned of its obstruction, to within a short distance of where decedent was struck by the train, and the evidence is contradictory as to whether or not there was room sufficient for him to stand beside the track, at the point where he was killed, between the track and the wall and escape a passing train. The colored man who saw the train when it approached decedent, testified that he did not see or observe the train and did not know of its approach until it was immediately upon the decedent, and so close' to him, that although he endeavored to escape, he was' not able to do so. The engineer excuses his failure to see the decedent, at the point where he was *190struck by tbe train, by stating, that after tbe train bad passed to tbe end of tbe curve from tbe point of tbe obstruction upon tbe track, that tbe rays of light from tbe beadligbt of tbe engine were cast beyond where decedent was. Tbe proof showed, without contradiction, that tbe engineer upon appellant’s train knew and bad known for two or three months past, that tbe men were engaged in doing tbe work named above, and were there at both day and night, and were using tbe tracks in passing to and fro about their work, and on several occasions trains operated by him bad to wait until obstructions were removed from tbe track, and that it was the custom of the foreman of tbe -construction company to send a man in each direction to warn trains of any obstructions placed upon tbe road by him in bis work. He was, also, acquainted with tbe fact that tbe work was being done by these men upon both of tbe cuts at tbe same time.”

Tbe case coming on for trial, resulted in a finding by tbe jury in favor of appellee of tbe sum of $6,000.00 in damages. A motion for a new trial having been overruled, the appellants seek a reversal of tbe judgment upon tbe sole ground that tbe court below erred in overruling its motion for a direct verdict by tbe jury in their favor, at tbe conclusion of tbe evidence for appellee, and at tbe conclusion of all tbe evidence. This is tbe only alleged .error upon which tbe appellants rely for a reversal, and is the only one which is necessary to be considered upon this appeal.

'To have authorized a peremptory instruction to find for appellants at tbe close of tbe evidence for appellee, it must, have appeared, that after having admitted tbe proof of all tbe facts which conduced to support tbe cause of action by appellee to be true, and every reasonable deduction from such facts, there was yet no evidence showing negligence on tbe part of appellants.

To have authorized a peremptory instruction for appellants, at the close of all tbe evidence, where tbe evidence conduced to prove negligence on tbe part of appellants, tbe proof of the facts upon which the contributory negligence of appellee was asserted, must have been uneontradicted, and when admitted to be true, must have been such, that when, under consideration, men of like intelligence and judgment would not arrive at different conclusions from' such facts. In other words, tbe ad*191mitted facts mast show that' hat for the contributory negligence of decedent he woald not have been killed.

The above doctrines are elementary, in this jarisdiction, and mast be adhered to in arriving at a determination of the alleged errors in this case, becaase it is.fan-damental, that whenever - evidence is introdaced, the weight of which it is the province of the jary to determine, the coart is not aathorized to arbitrarily invade the province of the jary and to determine the weight to be given to the evidence itself. It is also fandamental, that in trials by jary, while it is the province of the court to determine the law of the case; the jary, where the proof is contradictory, mast weigh the evidence, determine the credibility of the-witnesses, and find from the evidence what the facts are.

It is so well established in this jurisdiction that it is aseless to cite precedents or authorities, that where, ' in the exercise of ordinary care by the persons who are operating railroad' trains and engines, the presence of persons apon the tracks of the railroad mast be anticipated, that it is the dnty of the persons in charge of the train to give Warning of its approach, move it at a reasonable rate of speed, and keep an effective lookont for the presence of persons apon the track, and have ' some person in sach a position that he’ can control the movement of the train. ' To a mer'e trespasser xipon the track of the railroad, neither the' railroad nor its employes owe any duty, except to exercise ordinary care for his safety, after they have knowledge of his presence apon the'track. The .dnty'to keep *á*lookout for 'persons apon the track, and to give reasonable warning of the approach of a train, and to operate it at a reasonable rate of speed, is incumbent apon the employes of railroad companies, not only at pablie crossings and at popaloas place's, where the presence of persons mast 'be anticipated, bat where licensees and persons, by in- ' vitation of the railroad company, are apon' or abont the ' tracks, it becomes the dnty of the ■ railroad company to • exercise ordinary care for their 'safety. The decedent was an employe of-the Mason ■& Hanger • Company, and > engaged in construction work Of -the' appellant railroad • company. The wo'rk on the two cats had been in progress, both day and' night, for a period of two or three • months, and was engaged in by seventy-five or eighty •men, whose daties called them to frequently cross and *192to be upon tbe track and to be in dangerous proximity to it a very considerable portion of tbeir time. They were not, in any sense, trespassers, since they were there in performance of tbe very work wbicb tbe railroad company bad contracted with tbeir employer to do. Tbe railroad company was charged with notice of tbeir presence, and tbe appellant, Bryant, as engineer, bad actual notice of tbeir presence. The decedent bad, under directions of bis foreman, gone forward to perform tbe duty of flagging any train wbicb might come to tbe place of tbe obstruction from tbe north, and to effectively do this be was required to be upon tbe track and to signal a south-bound train by waving a lantern across tbe track. Tbe engineer admits' that be knew that some person should be upon or near tbe track to tbe north of bis train for that purpose. Under tbe circumstances stated, tbe railroad company and its joint appellant, as engineer, owed tbe duty of giving reasonable warning of tbe approach of tbe train, and of keeping a lookout for the employes of tbe construction company, who might, for any purpose, connected with tbeir duties, be upon tbe track or in dangerous proximity to it. Tbe warning should be given and a reasonable rate of speed maintained for the purpose of enabling employes of tbe construction company, if in a perilous situation, to betake themselves to a place of safety, and tbe lookout should be maintained so that tbe train might be stopped and tbe lives of those saved who might be in situations of danger, and from any reasons bad failed to bear tbe signals or to see tbe approach of tbe train. L. & N. R. R. Co. v. Gamble’s Admr., 156 Ky., 91; C., N. O. & T. P. Ry. Co. v. Winningham’s’Admr., 156 Ky., 434, 33 Cyc., 809; 23 A. & E. Ency. Law, 738.

Tbe evidence offered, wbicb shows that when tbe train was flagged to'the south of-the south cut, tbe speed of it was checked and when it came to a stop before tbe entrance of tbe south cut from tbe south, it called out tbe flagman by four blasts upon tbe whistle, to protect tbe rear of tbe train, and after tbe obstruction was removed, it, by a blast of tbe whistle, called in tbe flagman, and that these signals could have been beard by decedent, but after tbe train began to move through tbe south cut, and. on to tbe place where decedent was killed, no signals of approach were given, except tbe engineer and fireman testify that tbe bell was ringing, which 'is denied *193by all the other witnesses, or else they failed to hear the hell, with equal opportunities with the engineer and fireman to hear it. The engineer and fireman knew that the work was going on in the north cut, as well as the south, and the presence of the employes of the construction company should he anticipated there, and assuming, as we must upon a motion for a peremptory instruction, that no warning was given by the hell, and that no warning was given by the whistle of the approach of the train to the north cut, it was a question for the jury to determine, as to whether or not a reasonably sufficient warning was given decedent of the approach of the train. The evidence for appellee strongly conduces to prove that the engineer was either not maintaining a lookout, or else that he saw the perilous situation of decedent and made no effort of any kind to avoid injury to him. Upon a motion for a peremptory instruction, admitting the evidence of the facts upon which the negligence of appellants is based, and the reasonable deductions from" same, to he true, it would necessarily he concluded that appellants were guilty of two distinct acts of negligence, the one in not giving any warning to decedent of the approach of the train, and the other in not maintaining a lookout for him. It is insisted that although it should be held that the appellants were guilty of negligence, that the decedent was likewise negligent, and that hut for his own negligence he would not have lost his life, and for that reason the peremptory instruction should have been given. It is insisted, in the first place, that decedent had permitted himself to go to sleep upon or near the track, and that so doing was such contributory negligence as to entirely defeat his action. There is no evidence proving that he was asleep at the time of his death, except mere inference, and this is contradicted by evidence to the contrary. It is insisted that he knew that the train would pass upon the track, and with this knowledge took a position upon the track at a place, where, in the event of the train passing, it was impossible, on account of the close proximity of the debris to the track, for him to escape; that he could have found a short distance beyond where he stopped a place where the train could have passed him in safety; that he could have, by the exercise of ordinary care, known of the approach of the train,, as his sight and hearing were unimpaired, and that he could' have *194seen the headlight and heard the noise of the movement of the train and betaken himself to a place of safety; that he was sent to perform the dnty of a flagman, and it was his duty to have seek and known of the approach of the train, and that, all in all, he failed to exercise ordinary care for his own safety, and that failure was the cause of his death. The evidence as to the proximity of the debris to the track at the point where decedent was killed, and as to the train making a noise by its movement or having light sufficient to attract Ms attention at the time and place where he was, was not uncontradicted. The decedent, had a right to assume that the appellants would do their duty by him by giving warning of the approach of the train and by keeping a lookout for him. Although he may have heard the signalling for the flagman when the train was at the south end of the south cut, and knew or believed that at some time the train would come forward to the place where he was, he had a right to expect and assume that when it did so, he and the other employes of the construction company, who might be in the north cut, would have warning of its approach, as he knew that the track, at least for a time, in -the south cut, was impassable. The decedent was not an employe of the railroad company and had been sent to do the specific duty of looking out for and warning south-bound trains of the obstruction. He had no duty to look out for a north-bound- train, except the duty of exercising ordinary care for his own safety, and to keep out of its way. Without doubt, it was his duty to exercise ordinary care for his own safety, and tó employ his ears and eyes for that purpose, but there is evidence to the effect that the train came on, down grade, so noiselessly and without giving any warning, and under the circumstances it might be inferred, unexpectedly, that it was so close to decedent when he discovered it, that he could not escape, though he endeavored to do so. The evidence fails to show, without contradiction, that he failed to exercise that degree of care for his own safety that an ordinarily prudent person is accustomed to make use of under circumstances similar to those proven in this case. The facts upon which it is insisted, that it is proven that he failed to use ordinary care for his own safety, if admitted as true, men of equal intelligence and judgment would probably reach different conclusions from- them, and in such *195state of case, as to whether or not he exercised ordinary-care for his own safety, is a question for the jury.

It is therefore concluded that the court was not in error when it overruled the motion of appellants for a direct verdict, and the judgment is therefore affirmed.