#### Louisville & Nashville Railroad Company, and Wasioto & Black Mountain Railroad Company v. Davis.

(Decided February 5, 1915.)

Appeal from Bell Circuit Court.

1. 'Railroads — Trespassers Upon Tracks. — One is not licensed to travel longitudinally upon a railroad track, because the public road nearby has been obstructed, either by the railroad company, or some other person, and is thereby made inconvenient to travel. The employees of the railroad company are not required to anticipate the presence of persons upon the track of the railroad, except at public crossings, and in populous communities, like cities and villages.

2. Railroads — Trespassers Upon Tracks — Lookout Duty. — The employees of the railroad company do not owe a trespasser any lookout duty, and only owe him the humane duty of using ordinary care to prevent doing him injury, after they shall have discovered his peril.

BENJAMIN D. WARFIELD and WM. LOW. for appellants.

N. J. WELLER for appellee.

Opinion of the Court by

Judge Hurt

Reversing.

The appellee, Jesse Davis, sued the appellants, Louisville & Nashville Railroad Company, and the Wasioto & Black Mountain Railroad Company, in the Bell Circuit Oourt, complaining that one of the trains operated by the last named appellant, by the gross negligence and carelessness of its servants, had been run against him while he was walking on the track of the Wasioto & Black Mountain Railroad Company, on the 13th day of December, 1911, cutting and bruising his head, back and legs, and causing him. great suffering and permanent impairment of ability to earn money, and asking a judg-*573xnent against the two railroads for the sum of $10,000.00 in damages. The basis for his suit as developed by his petition was, that a county road extended from Clear Creek, on the south side of Cumberland Biver, and up said river to the mouth of Patterson’s Branch, and from thence on to Cannons Creek, and that two or three years before his injury the defendant railroads, in constructing the Wasioto & Black Mountain Eailroad, had located the road bed of that railroad from the mouth of Patterson’s Branch down to its intersection with the main line of the Louisville & Nashville Eail-road, immediately in the bed of the county road, and had utterly destroyed that road and rendered it impassible, and that thereafter, and up to the time of the injury, the public in traveling from the mouth of Patterson’s Branch down to the place where the two railroads intersect, had used the tracks of the Wasioto & Black Mountain Eailroad as a public thoroughfare, because they had no other road upon which they could travel between said points on account of the destruction of the county road, and that he, in going from the mouth of Patterson’s Branch to Mill Eice, a point on the right of way of the Louisville & Nashville Eailroad Company, and near the intersection of the two roads, while walking on the track of the railroad, early in the morning, and while he was using ordinary care for his own safety, the employes of the defendants negligently and carelessly ran their train over him, causing the injury complained of. He insists that under the facts stated, that he was traveling at a point where he had a right to be, and that the railroad company owed him a'lookout duty, which they did not perform.

The railroad companies filed a joint answer, in which they traversed all of the allegations of the petition and also, in addition to that, ma‘de a plea of contributory negligence on the part of the appellee, which he by reply denied.

Upon these issues the case was tried, and at the close of the evidence for the plaintiff the appellants asked the court to instruct the jury to find a verdict for them, and this motion having been overruled by the court, they complain. The trial resulted in a verdict and judgment against the appellants for the sum of $7,000.00. The appellants filed grounds and made a motion to set aside the verdict and judgment and to *574grant them a new trial, which, motion the court below having overruled, they appeal to this court.

In addition to the refusal of the court to give the jury a peremptory instruction to find for them, they also complain that the court failed to instruct the jury properly in the giving of instructions number one, two, and three, and to which they objected at the time, and also complain that the verdict of the jury was excessive.

In order to determine whether the court below was in error because of its refusal to give the peremptory instruction asked for, it will be necessary to make a statement of the facts which the evidence for the ■ ap-pellee tends to prove, and to see whether or not, under those facts, he was entitled to have his case submitted to the jury.

It seems from the evidence that the main line of the Louisville & Nashville Railroad Company passing through Pineville and on to Middlesboro crosses the Cumberland River at Wasioto, and at that point it extends up the Cumberland River and near to it to' the mouth of Patterson’s Branch, at which point it turns and goes up Patterson’s Branch and on to Middlesboro. The Louisville & Nashville Railroad Company acquired its right of way from where it crosses the Cumberland River to the mouth of Patterson’s Branch in 1888 or 1889. The Wasioto & Black Mountain Railioad Company intersects with the Louisville & Nashville Railroad on the south side of the Cumberland River, near 'Wasi-oto, and from thence it proceeds up the Cumberland River, and between the tracks of the Louisville *&*Nashville Railroad Company and the Cumberland River, to the mouth of Patterson’s Branch, at which point it quits the neighborhood of the Louisville *&*Nashville Railroad track and proceeds up the Cumberland River to Harlan county.

It seems that for a great many years last passed, and as far back as forty years, there had been a pass-way, which amounted to not much more than a mere trail, which extended from the mouth of Clear Creek, which is west of the intersection of the two railroads, and ran south and east along the Cumberland River, crossing the Louisville *&*Nashville Railroad at a point near the intersection of the two railroads, and from thence on up the Cumberland River to the mouth of Patterson’s Branch, between the Louisville *&*Nashville *575Eailroad tracks and the Cumberland Eiver. This road, from where it crossed the Louisville & Nashville Eail-road tracks, and for a distance of three hundred or four hundred yards, ran between the tracks of the Wasioto & Black Mountain Eailroad and the Cumberland Eiver, and at the end of said three or four hundred yards, and on to the mouth of Patterson’s Branch, the road contended for had been takén up by the grade and tracks of the Wasioto & Black Mountain Eailroad, and the railroad had been substantially built in this road bed. The evidence further shows that, between the place where this dirt road comes in contact with the track and grade of the Wasioto & Black Mountain Eailroad, and on down the river to-where it crossed the track of the Louisville & Nashville Eailroad, its bed was twenty or thirty feet from the tracks of the Wasioto & Black Mountain Eail-road. On the morning upon which Davis suffered his injury he was living at the mouth of Yellow Creek, near the Wasioto & Black Mountain Eailroad, and about two miles east of Patterson’s Branch; that he left home early in the morning, and as quick as he got to the railroad track he got upon it and walked on down, going past the mouth of Patterson’s Branch, and on down to a point which some of the evidence shows was sixty yards, and some of it shows one hundred and sixty yards, beyond the place where the so-called county road had been taken up by the building of the railroads, when he was suddenly struck by a train coming behind him from the south, which knocked him off of the track with such force that he was rendered unconscious; and that he had not been able to perform manual labor since that time. His statement is that he did not hear the train coming behind him; that he heard no signals of any kind, and was not aware of its approach until it struck him; that he had not looked back or looked out for any trains on the road. Some of his witnesses who lived nearby stated that just about the time it is said he was struck by the engine of the train, that they heard one or more sharp whistles, which the engineer gives as warning to any one who is suddenly discovered in a perilous situation.

The appellee below offered and read to the jury an order of the Bell County Court, made on the 11th day of August, 1903, by which it ordered a public road to be established, “beginning at the mouth of Big Clear *576Creek, on the south, side of the railroad, and about forty yards from said road, at the present county road, tbenee at an angle from tbe railroad, and up tbe bill for a distance of forty yards; tbenee running nearly south and parallel to the right of way of tbe Louisville & Nashville Railroad Company above or south of said right of way, to a corner of H. P. Browning’s inclosure around bis bouse, crossing tbe said Louisville & Nashville Railroad Company at right angles; thence up tbe river parallel with and adjoining tbe north right of way line of tbe said railroad, to Patterson’s Branch, a short distance above its mouth, so as to intersect with the public road leading up said branch and no further.” The proof further shows that after this order was made in the Bell County Court surveyors or overseers were appointed for this road established by this order, and for a. number of years thereafter they did some kind of work upon this road. The Louisville & Nashville Railroad Company was made a party to this proceeding in the county court, which resulted in the judgment of the county court establishing the road as above stated. It does not, however, appear that any road was ever opened along the places designated in the judgment, but that the public continued to travel the old trail, which had existed there for many years, and the work, if any, that was done by the overseers and those assisting them was done upon this old trail. Whether-.any part or what part of this old dirt road is upon tho right of way of the Louisville & Nashville Railroad does not appear from the proof, which is hardly intelligible upon that point, as it appears that on the trial below diagrams were used by each of the parties in introducing their evidence, and the witnesses testified in reference to these diagrams, but the parties have not seen fit to enlighten this court by having either of the diagrams included in the record. It is conceded that from the point of the intersection of the two railroads and on towards Patterson’s Branch, from that point, that both of the railroad tracks are built upon the right of way owned by the Louisville & Nashville Railroad Company for a considerable distance, and at the point where the appellee received his injury both railroads were upon the right of way of the Louisville & Nashville Railroad Company; but it is impossible to see from the evidence whether the dirt road opposite that point is upon the *577right of way of the Louisville & Nashville Railroad or not. It seems that at the point where the dirt road intersects with the Wasioto & Black Mountain Railroad track, the railroad track is laid upon a fill, which the witnesses variously estimate to he from two to ten feet in height, and that this fill continues on down the river a considerable distance, and to the point where the appellee received his injury. It, however, appears from the evidence that persons on horseback or upon foot so, as to travel the dirt road, have been going down, the embankment at the place where the dirt road leaves the road bed of the railroad, but that two weeks before the appellee received thé- injury the section hands upon the railroad had thrown mud and stones into the dirt road where it intersected with the railroad track, and that the mud and stones extended from twenty to thirty feet from the railroad track along the road toward the west.

It seems that the contention of the appellee that at the point of his injury that he was obliged to travel upon the railroad track, because it was built within the bed of the old county road, is not Avell taken, because at that point the railroad upon which he was walking when hit by the train was upon the original right of way owned by the Louisville & Nashville Railroad Company, and the road ordered to be opened and established by the order of the county court was not upon the right of way, but was on the north of it, and between it and the river.

As to whether or not there had been such use of the road as contended for by appellee by the public, and for such length of time, and under such conditions as to constitute it a public road, where any one had a right to travel, or as to what rights a person has to travel upon the tracks of a railroad where a public road has been, without authority, appropriated by the railroad, is unnecessary to be decided for a proper determination of this case, because at the time appellee received his injury he was then at a point upon the railroad track where it is conceded that no public road of any kind was ever located, and the road which appellee claims as a public highway was from twenty to thirty feet north of the railroad track upon which he was walking, and between the railroad track and the river. His contention that the dirt or county road, from the place *578where it left the railroad track, and on down the river to and beyond his point of injury, had been filled by the section hands of the railroad with mud and stones to such an extent as to render it impassable, is not sustained by the proof, as the evidence shows that this mud only extended about twenty or thirty feet down the river from the point where the dirt road left the track of the railroad, and he was from sixty to one hundred and sixty yards down the river from said point. His other contention, that he could not get down from upon the fill, seems to be idle.

Whatever lookout duty the employes of a railroad company may be justly required to perform where the railroad tracks have been put in the streets of a city, town, or other populous community, we do not think that this rule should be extended so as to embrace persons who, with impunity, go upon the tracks of a railroad, and travel same longitudinally for their convenience or pleasure, because an adjacent highway has been obstructed, either by the railroad company or any one else, in an isolated and thinly populated commu-nitjq such as the evidence shows the one where ap-pellee’s injury occurred to have been. Ample remedies have been provided by law for the county courts and for private persons to prevent, as well as for the removal of, unauthorized obstructions in public ways. To use the tracks of a railroad company as a thoroughfare for travel is in itself a dangerous and negligent act, and such acts, considering the great number of persons who suffer injuries from such carelessness, ought not to be encouraged.

As we gather from the evidence, the appellee had no right to be upon the railroad track, even under his own contention, at the place where he was injured, because directly between him and the river lay the alleged county ’road, and within twenty or thirty feet of him, and such had been the condition for the last sixty to one hundred and sixty yards of his travel. The contention of his counsel that, even if he had departed from the railroad track and proceeded along the alleged county road, that he would still have been upon the right of way of the railroad, and his status would have been unchanged, if he was a trespasser.' However, if he had left the railroad tracks and proceeded along the dirt road, he would have been safe, and no injury would have occurred to *579him. Having no right to be upon the railroad track at the time he was injured, he was a trespasser and must submit to the rules of law governing the rights of trespassers. As a trespasser the employes of the railroad company would not owe to him any lookout duty, and only owed to him the humane duty of using ordinary care to save him from injury, if they discovered the peril in which he had voluntarily placed himself. If the employes of the railroad company did not discover him at all, or discovered him too late to save him from injury, by the exercise of ordinary care upon their part, lie has no cause for complaint.

In the case of C. & O. Ry. Co. v. See’s Administrator, 79 S. W., 252, it is said: “The well settled .rule in this State is that those in charge of a train owe no duty to a trespasser, except when his presence is discovered upon the track, to use reasonable care to avoid injuring* him. This rule has been so repeatedly announced by this court that it would be labor lost to cite cases in its support. There is no duty reposing upon those in charge of a train to sound whistles, or ring bells, or to carry headlights to give warning to trespassers. They do not have to anticipate their presence upon the track.”

The counsel for appellee, however, contends that the fact that several persons in the community where the injury occurred were in the habit of traveling upon this íailroad track for their convenience in going to and fro in that community, and that the railroad company had acquiesced in that use of it, and for that reason a lookout duty was imposed upon the men operating the train, such as they are required to perform when passing a publie crossing, or in a populous community of a city or town. There is, however, no evidence tending to show that the railroad company in any wise acquiesced in this use of its tracks, or, even if the company had had knowledge of this use of its tracks, it would have conferred no additional right upon the appellee in this case, for simple acquiescence on the part of a railroad company in the use of its track by the public as a pass-way, does not confer authority, or right, nor amount to a license to so use it. Brown’s Administrator v. L. & N. R. R. Co., 97 Ky., 228.

The same doctrine was announced by this court in. the case of Adkins’ Admr. v. Big Sandy & Cumberland Railroad Company, et al., 147 Ky., 30.

*580There being- no evidence conducing to show that the persons operating the train which struck appellee discovered his peril at all before he was struck by the train, or discovered it in time to have averted the injury to him, the court below ought to have sustained appellant’s motion to direct the jury to find a verdict for them.

While the instructions given by the court were erroneous in failing to fix a measure of damages, and assuming that certain things existed which were issues in the pleadings and upon the proof, but having arrived at the conclusion that appellee had no case to submit to the jury, it is unnecessary to discuss the instructions.

The judgment appealed from is, therefore, ordered to be reversed, and the case remanded to the court below, with instructions to proceed in conformity with this opinion.