Opinion by
Judge Lassing
Reversing.
This is an appeal from the Meade circuit court rendered upon the verdict of a jury in favor of appellee against appellant for causing the death of appellee’s intestate, George Willis, at Muldraugh’s station, in Meade county, in September, 1904. Deceased was 54 years of age when killed. He had gone to the railroad station for the lady for whom he worked to deliver some boxes of peaches for shipment. He was accompained by his 10 year old son. The station stands upon the west side of the main track, then comes the passing track east of the main track, and then a spur track east of the passing track. On the day upon which deceased was killed there were two box cars standing upon the spur track for the purpose of being loaded with barrels of apples which were then being shipped from that station. The north end of one of these cars extended north of the north end of the depot, and the south end of the other car reached down to about even with the south end of the depot. South of these two freight cars was a freight car standing on the passing track. It was about.noon when deceased reached the station with his peaches. He drove up to the depot and had unloaded a part of them, when a train approached, and evidently fearing that his horse would scare, he drove back from the depot until the train had passed; he then returned to the depot, finished unloading the peaches, received the bill of lading of the agent in charge, left his- little son sitting in the wagon, and [640] crossed over the main track and the passing track to where the two freight cars were standing on the spur track and in which the apples were being received for shipment. He climbed up into the car where two men were at work, and asked what they were paying for apples. His little son testified that his father went to that car for the purpose of securing empty barrels from those in charge of the car who worked there, and it may be that deceased had gone there for that purpose. There were two men receiving apples in said car, one named Ellwanger and one named Schoening. They testified that he had no sooner climbed into the car and asked the price of apples, than he heard the approach of a train or engine. He immediately jumped out of the car on the east side of it, ran south around the car on the spur track and around the south end of the car on the passing track out on the main track, where he was struck and killed, being-knocked or carried some distance by the engine. Some 10 or 12 witnesses testified that this engine was following some five, sis or less than ten, minutes behind the fast train which had just passed. Most of them say that the engine whistled for the crossing north of the station, and all of them agree that they heard the engine coming, even before they saw it, as it was making an unusual amount of noise, and some of them thought it was a ‘ * wrecking engine. ’ ’ Ell wan-g-er and Schoening both say that deceased heaid the approaching engine, and his conduct shows beyond question that he heard it, whether it signaled or not, for he jumped out of the car, ran around it and the other car, evidently for the purpose of going over on the road beyond the railroad to look after the safety of his little son who he had left sitting in the wagon with the horse untied. Proof was introduced showing that the engine was running rapidly, the testimony varying from 25 to 60 miles an hour. Those in charge [641] of the train testified that deceased came upon the track suddenly from behind the box car standing on the passing track; that when they first discovered him upon the track it was impossible to have avoided striking him. Other witnesses testified that from the position in which the engine was upon the track— moving at the rate of speed it was when deceased came upon the track — they did not believe the accident could have been avoided. Muldraugh is not an incorporated town, and the record does not show its size, or the number of people living there. The proof shows that the road makes a curve north of the station, and standing in the track at the station one can see an engine 400 feet away; that the public road or crossing is 200 feet north of the station. This was all the proof.
The petition shows that the administrator of the deceased was a resident of Bullitt county, and the deceased was a resident of Meade county, at the time the accident occurred in Meade county as stated. Appellant filed a special demurrer to the jurisdiction of the court, and it was overruled, and an exception saved. At the conclusion of plaintiff’s testimony defendant moved for a peremptory instruction, which was overruled. This motion was renewed at the close of all the testimony, and again overruled, to which defendant excepted. Five .questions are raised on this appeal: (1) The court erred in refusing to 'sustain the special demurrer to the jurisdiction. (2) The court erred in admitting incompetent evidence. (3) The court erred in refusing to give peremptory instruction. (4) The verdict is not sustained by the evidence, and is contrary to law. (5) The jury was not properly instructed.
Appellant complains of the ruling of the trial court in overruling its special demurrer, which was a plea to the jurisdiction of the court. Section 73 of the [642] Civil Code of Practice provides that “an action for an injury to. a passenger or his property must be brought in the county in which the defendant or either or several defendants resides; or in which plaintiff or his property is injured, or in which he resides; if he resides in a county into which the carrier passes. ’ ’ Appellant contends that as the administrator, Kelly, does not live in Meade county, and as neither of the defendants live in Meade county, that' although the intestate lived in and was killed in Meade county, the action cannot be maintained therein, but must be brought in a county in which one of the defendants lives, or else in Bullitt county, the residence of the administrator, and relies upon sectaion 73 of the Civil Code of Practice to support its contention. We cannot agree to this contention. The word “plaintiff” as used in this section means Willis, the man killed, who speaks through his representative, his administrator. And this is the construction which the lawmakers evidently intended should be placed upon it, and the court properly overruled defendant’s demurrer to the jurisdiction.
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Opinion by
Judge Lassing
Reversing.
This is an appeal from the Meade circuit court rendered upon the verdict of a jury in favor of appellee against appellant for causing the death of appellee’s intestate, George Willis, at Muldraugh’s station, in Meade county, in September, 1904. Deceased was 54 years of age when killed. He had gone to the railroad station for the lady for whom he worked to deliver some boxes of peaches for shipment. He was accompained by his 10 year old son. The station stands upon the west side of the main track, then comes the passing track east of the main track, and then a spur track east of the passing track. On the day upon which deceased was killed there were two box cars standing upon the spur track for the purpose of being loaded with barrels of apples which were then being shipped from that station. The north end of one of these cars extended north of the north end of the depot, and the south end of the other car reached down to about even with the south end of the depot. South of these two freight cars was a freight car standing on the passing track. It was about.noon when deceased reached the station with his peaches. He drove up to the depot and had unloaded a part of them, when a train approached, and evidently fearing that his horse would scare, he drove back from the depot until the train had passed; he then returned to the depot, finished unloading the peaches, received the bill of lading of the agent in charge, left his- little son sitting in the wagon, and [640] crossed over the main track and the passing track to where the two freight cars were standing on the spur track and in which the apples were being received for shipment. He climbed up into the car where two men were at work, and asked what they were paying for apples. His little son testified that his father went to that car for the purpose of securing empty barrels from those in charge of the car who worked there, and it may be that deceased had gone there for that purpose. There were two men receiving apples in said car, one named Ellwanger and one named Schoening. They testified that he had no sooner climbed into the car and asked the price of apples, than he heard the approach of a train or engine. He immediately jumped out of the car on the east side of it, ran south around the car on the spur track and around the south end of the car on the passing track out on the main track, where he was struck and killed, being-knocked or carried some distance by the engine. Some 10 or 12 witnesses testified that this engine was following some five, sis or less than ten, minutes behind the fast train which had just passed. Most of them say that the engine whistled for the crossing north of the station, and all of them agree that they heard the engine coming, even before they saw it, as it was making an unusual amount of noise, and some of them thought it was a ‘ * wrecking engine. ’ ’ Ell wan-g-er and Schoening both say that deceased heaid the approaching engine, and his conduct shows beyond question that he heard it, whether it signaled or not, for he jumped out of the car, ran around it and the other car, evidently for the purpose of going over on the road beyond the railroad to look after the safety of his little son who he had left sitting in the wagon with the horse untied. Proof was introduced showing that the engine was running rapidly, the testimony varying from 25 to 60 miles an hour. Those in charge [641] of the train testified that deceased came upon the track suddenly from behind the box car standing on the passing track; that when they first discovered him upon the track it was impossible to have avoided striking him. Other witnesses testified that from the position in which the engine was upon the track— moving at the rate of speed it was when deceased came upon the track — they did not believe the accident could have been avoided. Muldraugh is not an incorporated town, and the record does not show its size, or the number of people living there. The proof shows that the road makes a curve north of the station, and standing in the track at the station one can see an engine 400 feet away; that the public road or crossing is 200 feet north of the station. This was all the proof.
The petition shows that the administrator of the deceased was a resident of Bullitt county, and the deceased was a resident of Meade county, at the time the accident occurred in Meade county as stated. Appellant filed a special demurrer to the jurisdiction of the court, and it was overruled, and an exception saved. At the conclusion of plaintiff’s testimony defendant moved for a peremptory instruction, which was overruled. This motion was renewed at the close of all the testimony, and again overruled, to which defendant excepted. Five .questions are raised on this appeal: (1) The court erred in refusing to 'sustain the special demurrer to the jurisdiction. (2) The court erred in admitting incompetent evidence. (3) The court erred in refusing to give peremptory instruction. (4) The verdict is not sustained by the evidence, and is contrary to law. (5) The jury was not properly instructed.
Appellant complains of the ruling of the trial court in overruling its special demurrer, which was a plea to the jurisdiction of the court. Section 73 of the [642] Civil Code of Practice provides that “an action for an injury to. a passenger or his property must be brought in the county in which the defendant or either or several defendants resides; or in which plaintiff or his property is injured, or in which he resides; if he resides in a county into which the carrier passes. ’ ’ Appellant contends that as the administrator, Kelly, does not live in Meade county, and as neither of the defendants live in Meade county, that' although the intestate lived in and was killed in Meade county, the action cannot be maintained therein, but must be brought in a county in which one of the defendants lives, or else in Bullitt county, the residence of the administrator, and relies upon sectaion 73 of the Civil Code of Practice to support its contention. We cannot agree to this contention. The word “plaintiff” as used in this section means Willis, the man killed, who speaks through his representative, his administrator. And this is the construction which the lawmakers evidently intended should be placed upon it, and the court properly overruled defendant’s demurrer to the jurisdiction.
Upon the question as to whether or not the trial court should have given a peremptory instruction, it will be necessary to notice carefully the proof, and determine from the facts proven whether the deceased was killed through his own negligence and carelessness, Or was he exercising ordinary care for his own safety when killed? That he heard the approach of the engine which killed him there cannot be the slightest doubt when we consider the testimony of the witnesses Ellwanger and Shoening and the action and conduct of the deceased immediately after 'they say he heard a train. His every movement shows that he heard it; that he knew and realized it was rapidly approaching, that he evidently remembered or recalled the fact that he had left his little [643] son in the wagon with the horse untied, over in the. road behind the depot. And his efforts were directed towards reaching his son, and looking after his safety. It is immaterial, then, for the purposes of this suit whether the whistle was sounded or the bell rung, for this statutory provision is required to notify the public who may be on the highway at railroad crossings or other dangerous places of the approach of the train. In the case af Helm v. L. & N. R. R. Co., 17 Ky. Law Rep. 1004, the court held, as stated in the syllabus, as follows: “The appellant having seen the approaching train, he is not entitled to recover damages from the railroad company for an injury sustained by the train striking him while he was attempting to cross the track in front of the moving train. Though it was the duty of the engineer to sound his whistle some distance from the station, still his failure to do so did not entitle the appellant to recover damages for the injury sustained, since he negligently attempted to cross the track in front of the train after discovering its approach.” And further discussing the question in this case, the court said: “It seems to us that if there was a failure to sound the whistle, such failure would not entitle the appellant to recover. The object in requiring the whistle to be sounded and bells to be rung is to give notice of the approach of the train-. The appellant discovered the train was coming, and he negligently attempted to cross the track in front of it. It cannot be said that a failure to sound the whistle was the proximate cause of the injury.” Nor can appellee complain of the rate of speed at which the train or engine was going at the time that his intestate was killed, for, as said by Judge Holt in the case of Craddock v. L. & N. R. R. Co., 16 S. W. 125, 13 Ky. Law. Rep. 18, “conceding the rate of speed, considering the place, was unreasonable, yet this did not authorize [644] the appellant to negligently throw himself in the way of it, when he had ample warning of its approach, and then claim damages for any resulting injury.” In this case deceased heard the train, and by the exercise of any degree of care could have seen it as the proof shows there was nothing in his way to obstruct his view when he reached a point between the passing track and the main track. In the case of the L. & N. R. R. Co. v. Taffe’s Adm’r, 50 S. W. 850, 21 Ky. Law Rep. 64, the court held: 1 ‘ that it was the duty of the decedent, if he had notice of the approach of the train to the station, to exercise reasonable care to ascertain the proximity of the train to the station, and to be careful not to expose himself to any danger by walking upon or near the track upon which the train was approaching, and it was his duty, if he heard the train whistle, indicating its approach to the station, to be on the lookout for same, and to keep himself out of danger.” In the case of Gresham’s Adm’r v. L. & N. R. R. Co., 24 S. W. 869,15 Ky. Law Rep. 599, the court said: “It is evident that the boy saw the train before he crossed the track, and that he believed he could cross in safety before it could reach him, and he doubtless could have succeeded in the attempt but for the fact that he got his foot hung and fell. It is now contended that if the train had stopped, as required by the statute, before it got to the crossing, Gresham could have had time to recover from his fall, and have crossed in safety, and that because it failed to stop, as required, the killing was 'the result of wilful negligence. * * * Here, as said, Gresham evidently saw the train coming at a rapid rate of speed, and close at hand, and believing that he could make the crossing in safety, made the venture, and he would doubtless have succeeded but for the fact that he fell, which caused him to be overtaken and killed. In this there is no negli[645] gence of the appellee in reference to him. The negligence that caused the death was his.”
In the case before us, deceased evidently saw the engine approaching. He thought he could cross the track before it reached him. He made the venture, miscalculated the speed at which the train was approaching, and was killed. The fault was his, unless those in charge of the train after they discovered him could have stopped the train in time to have prevented the accident. In the Case of Johnson’s Adm’r v. L. & N. R. R. Co., 91 Ky. 651, 25 S. W. 754, the court said: “When an adult person steps upon a railroad track in front of and in full view of an approaching train, those in charge have the right to presume that his own consciousness of danger will cause him to leave it before the train reaches him; and, in case the person is deaf, or otherwise deficient in his faculties, so as to render him unconscious of the impending danger, the knowledge of such infirmity must be brought home to those in charge of the train before they or the railroad company can be made liable.” Following the rule laid down in this case,- if those in charge of the train which killed him had seen him upon the track as they approached the depot, they would have had the right to have expected him to get off of the track in time to have prevented the accident. The proof, however, shows that they did not see him upon the track, and, in fact, he did not come upon the track until the train was almost upon him, when it was impossible to have done anything to have prevented the accident. The place at which deceased was killed was not a public crossing, and he had no contractual relations with the company as shown by the proof.' Considering the business for which he crossed the track to the spur track in the light most favorable to him, he was at most a licensee and the company owed him no duty higher that the exercise [646] of ordinary care to have prevented the accident. We are of opinion that the facts in this case authorized and warranted a peremptory instruction to the jury to find for the defendants.
The judgment is reversed with instructions to grant a new trial in Conformity with this opinion.
Petition for rehearing by appellee overruled. -