CASE 55. — ACTION BY A. C. JOHNSON AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. FOR DAMAGES FOR PERSONAL INJURIES. — March 27.

#### Johnson v. Louisville & N. R. R. Co.

Appeal from "Warren Circuit Court.

JohN M. Calloway, Judge.

Judgment for defendant. Plaintiff appeals.

Affirmed.

1. Railroads' — Side Track in Stock Yard — Duty to Trespasser or Licensee — Where a railroad company operates a stock yard on which it had a side track over which cars moved for the shipment of stock, a visitor to such yard who had no business there, was either a trespasser or a licensee, and the railroad company owed him no duty to keep a lookout for his safety. It was under no duty to him to see that its agent or servants were not guilty of negligence in the' operation of its trains on such track.

2. Same — This court has uniformly held that a railroad company does not owe any duty to a trespasser or licensee, except to save him from peril after it is discovered, if it can he done by the exercise of ordinary care.

B. F. PROCTER attorney for appellant.

G. H. HERDMAN and R. L. GREENE of counsel.

SUMMARY AND AUTHORITIES.

1. The degree of care required in places where the public are accustomed to be, and in cities. (L. & N. R. R. Co. v. Penrod’s Adm’r, S. W. 56-1, id. 66-1013; I. O. R. R. Co. v. Hay’s Adm’r, S. W. 84-338; L. & N. R. R. Co. v. Price’s Adm’r S. W. 76-836; Nichols v. C. & O. R. R. Co., S. W. 2-181, 8 Rep. 519; Conley v. C. N. O. & T. P. R. R. Co., 89 Ky. 405, 11 Ky. Law Rep. 602, S. W. 12-764; Shelby’s Adm’r v. C. N. O. & T. P. Co., 85 Ky. 224, S. W. 3-157).

*4882. Contributory negligence is a question of fact for the jury. (L. & N. R. R. Co. v. Siebert’s Adm’r, S. W. 55-892; I. C. R. R. Co. v. Stith’s Amd’r, S. W. 85-1173).

BENJAMIN D. WARFIELD, attorney for appellee.

J. A. MITCHELL, of counsel.

POINTS AND AUTHORITIES.

1. (a). The petition did not state a cause of action. (Embry v. L. & N. R. Co., 18 Ky. Law Rep. 434).

(b). And for this, if for no other reason, the peremptory instruction was proper. (L. & N. R. Co. v. Schweiter, 14 Ky. Law Rep. 855; L. & N. R Co. v. Copas, 95 Ky. 460; L. & N. R. Co. v. Paynter’s Adm’r, 26 Ky. Law Rep. 761).

2. At the time and place appellant claims his horse was frightened by the noises made by the switching of the cars by appellee, he was on the private property of appellee, where he had no right or occasion to be, and wias therefore a trespasser, and appellee owed him no duty except to use reasonable care to refrain from injuring him after his peril was discovered, which was never done, as conclusively appears from the evidence. (Embry v. L. & N. R. Co., supra; Brown’s Adm’r v. L. & N. R. Co., 97 Ky. 228; Hoskin’s Admx. v. L. & N. R. Co., 17 Ky. Law Rep. 78; L. & N. R. Co. v. Thornton, 22 Ky. Law Rep. 778; Gherkin’s Admx. v. L. & N. R. Co., 17 Ky. Law Rep. 201; Eastern Ky. Ry. Co. v. Powell, 17 Ky. Law Rep. 1051; C. N. O. & T. P: Ry. Co’s Receiver v. Jackson, 22 Ky. Law Rep. 630; Jackson’s Adm’r v. L. & N. R. Cc., 20 Ky. Law Rep. 309; L. & N. R. Co. v. Hocker, 111 Ky. 707; L. & N. R. Co. v. Bernard, 18 Ky. Law Rep. 672; Goodman’s Adm’r v. L. & N. R. Co., 116 Ky. 900; Early’s Adm’r v. L. H. *&*St. L. Ry. Co. 116 Ky. 19; Dilas’ Adm’r v. C. & O. R. Co., 24 Ky. Law Rep. 1347; L. & N. R. Co. v. Wade by etc., 18 Ky. Law Rep. 549; L. & N. R. Co. v. Murphy, 6 Ky. Law Rep. 664; Lyter v. L. & N. R. Co. 6 Ky. Law Rep. 223; Johnson v. L. & N. R. Co. 91 Ky. 651; Yertrees v. N. N. & M. Y. Co. 95 Ky. 314; Givens v. K. C. R. Co., 12 Ky.' Law Rep. 950; L. *&*N. R. Co. v. Thompson, 14 Ky. Law Rep. 815; K. C. R. Co. v. Gastineau, 83 Ky. 119; Woodyard v. K. C. R. Co., 12 Ky. Law Rep. 801; I. C. R. Co. v. Dick, 91 Ky. 434; McDermott v. K. C. R. Co. 93 Ky. 408; L. & N. R. Co. v. Penrod, 108 Ky. 172; Lackat v. Lutz, 94 Ky. 287).

3. The speed of the train is not material as to one who has voluntarily placed himself on or near a railroad track where he *489has no right to he. (Shackelford v. L. & N. R. Co., 84 Ky. 43; L. & N. R. Co. v. Howard, 82 Ky. 212; L. & N. Co. v. Cox, 8 Ky. Law Rep. 961).

4. Cases cited and relied upon hy appellant discussed, and shown not to he applicable to the facts in the case at bar.

5. The judgment of the trial court- on a peremptory instruction to find for appellee was clearly proper land should be affirmed.

6. Counsel for appellant practically concede he was a trespasser, but claim a precautionary duty was due him because he was in a city and on a public road, etc. If he was not at a place where he had a right to be it is immaterial how close or how far away from such point he was. (See Davis’ Adm’r v. C. & O. R. Co., 116 Ky. 157; Simmons v. Gregory, 27 Ky. Law Rep. 511; King v. Creekmore, 25 Ky. Law Rep. 1292).

OPINION op the Court by

Judge Paynter

Affirming.

The appellant seeks to recover damges because his horse became frightened and caused him to be thrown from his buggy and injured. He alleges that it was the result of the gross negligence of the defendant, its agents, and servants. The facts upon which he seeks a recovery may be summarized as follows; The appellee owned stockyards somewhere in the corporate limits of Bowling Green and a vacant lot adjoining them about as large as an ordinary square in a town. Upon this lot appellee had a side track over which cars were moved for the purpose of the shipment of stock. The track terminated on the vacant lot, but appellee did not have a butting post at the end of it. On -the occasion in question a box car was standing near the end of the side track, which was kept on it by means of a cross-tie laid on the track. An engine with a number of box cars attached to it backed in on the side track and struck the box car with such violence that it was forced entirely beyond the end of the track, and the collision made *490such, noise that it frightened appellant’s horse and thus caused the injury complained of. The evidence tends to show that the engine bached in at a rapid rate of speed, and caused the cars to collide with great force, and made a very loud and unusual noise. A friend of the appellant invited him to drive to' the stockyards, where he wanted to see a brother in regard to some financial matters The appellant and his friend were both in the buggy, which had been standing for about five minutes on the vacant lot at a point between the box car and the entrance of the stockyards.

The appellant had no' business whatever at the stockyards or with the appellee, but simply drove there at the invitation of his friend. His friend bad no business with the appellee or at the stockyards With refernee to any business conducted there. The appellant was either a trespasser or licensee upon appellee’s vacant lot, as he was not there. on any business connected with the stockyards, or with the appellee. The appellee did not maintain the stockyards or keep its vacant lot for the pleasure of persons who might be led there by curiosity or for social enjoyment. They were maintained for business-purposes, and those who were called there by business with the appellee were there as by invitation and the appellee owed them a duty to save them from injury by the negligence of its agents, servants, or employees. As the appellant was there as a trespasser or licensee, the appellee owed him no duty to keep a lookout for his safety. It was under no duty to him to see that its agents or servants were not guilty of negligence in the operation of its trains upon the side track. Of ocurse, in making this statement, the court does not want to be understood as saying that, if those *491in charge of the train on the side track had discovered appellant on it, it would hot have been, their duty to have exercised ordinary care to have' rescued him from his peril. The appellant, while on appel-lee’s vacant lot as a licensee, cannot complain of the speed with which the train on the side track is operated, nor as to the manner-in which the cars may he handled or bumped together. This court has uniformly held that the railroad company does not owe any duty to a trespasser or licensee, except to save him from his peril after it is discovered, if it can be done by the exercise of ordinary care. However, the rule is subject to this qualification that in cities and towns it is the duty of those in charge of a train to keep a lookout and give warnings of its approach, so that those who may, with or without right, be upon the track may be warned of the train’s approach and thus save themselves from injury. This court has so often ruled in the manner above indicated that we deem it unnecessary to cite the cases. Depots are established and maintained for the use of those who may have business with the railroad and for; those who take passage on trains and for those who leave them. Stockyards are maintained for the purpose of the shipment of stock, and persons are invited there by the railroad company who desire to transact business for the conduct of which the yards are established. Depots must' be maintained in a reasonable safe condition for the use of those who are called there to transact business with the railroad company. Likewise stockyards must be kept in a reasonably safe condition, and ordinary care must be exercised in their maintenance and use so as to avoid injuring persons who may be called there to transact business *492witli tiie person or corporation owning or controlling them.

Thompson on Negligence, yol. 1, section 1004, reads as follows: “But'persons using the station merely by permission or sufferance, for example, those taking shelter in a storm, cannot claim from the railroad company the éxercise of even ordinary care; hut they enjoy the license subject to its perils. Thus, it has been held that a foot traveler, injured in the dark by falling through an open trapdoor while crossing the platform of a railroad station which the company allows people to use as a short cut between public streets., cannot recover damages from the company, although no light or barrier was placed at the opening. Similarly, a crowd having gathered at a railway station to witness the arrival of the President of the United States, the company was held not liable to one of this number who was injured by the breaking down of the platform, even though the floor was not in a proper state of repair for its ordinary use. One who desires to.take passage upon the cars must exercise his right to enter and remain in a station house, in conformity with the due and reasonable regulations of the company as to his conduct while there; and he cannot exercise it until a reasonable time next prior to the departure of the train on which he intends to go. What is such a reasonable time depends upon the circumstances of each particular case. So, a person making a friendly visit to a telegraph operator in a railway station has no right of action for an injury received in consequence of the station being demolished by a collision of trains.” In Post v. Texas P. Ry. Co., 23 S. W. 708, the Court pf Civil Appeals of Texas held that a railroad company is under no obligation to keep a *493platform about its .depot in a safe condition for a boarding bouse keeper who goes there to meet incoming’ trains for the purpose of securing boarders. This conclusion is based upon the theory that, as no obligation or duty toward the plaintiff existed, the defendant could not be guilty of violating any obligation or duty towards the injured party. The same principle was enunciated in Johnson v. Boston & Maine R. R. Co., 125 Mass. 75, and also in the case of Pittsburg, Ft. Wayne & Chicago Ry. Co. and Pennsylvania R. R. Co. v. Emily Bingham, Administratrix, 29 Ohio St. 364. Our conclusion is that the appellee did not owe appellant any duty at. the time he received his' injury; hence there could not have been a breach of duty by negligence in permitting the ears to collide with unusual force and noise.

The judgment is affirmed.