OPINION by
Chief Justice Hobson.
— Reversing.
Spring’ Lick, in Grayson county, is a station on tlie Illinois Central- Railroad. The railroad passenger platform is on the south side of the main track. North of the main track, and about 8 feet from it, is a side track, and north of the side track the depot is located, with a plank walk about 5 feet wide leading over from it to the passenger platform. The waiting room is in the west end of the building, and the walk runs across to it. The building is about 40 feet long. Z. T. Proctor, who lived at Leitchfield, desired to take the afternoon train home. When the train was com[99]*99ing, but some distance away, be beard it whistle, and went to tbe east end of tbe station, and at tbe window of tbe office asked if tbe agent was. in. He was told that tbe agent was not in. He then entered into a conversation with two men be met on tbe platform, and sat down on a chicken coop, talking with them, until tbe passenger train pulled in. Tbe engine of the passenger train stopped a little east of tbe station. About tbe time that tbe passenger train arrived, a freight train, which bad orders to meet it there, also arrived, going west, and began pulling in. on tbe side track at tbe end east of tbe station to make room for the passenger train to pass it. After Proctor bad talked to bis friends a few moments, be got up, saying that be must get on tbe train, and went down tbe steps leading from tbe platform on which be was sitting, and, when he reached tbe side track, turned and walked down in the middle of tbe track, evidently with a view of walking back to where tbe passenger coaches were and then getting on the train. "While be was walking along tbe track, tbe freight train, which was getting out of the way of tbe passenger train, came up behind him and collided with him, cutting off one foot and injuring tbe other. He saw tbe freight train on the side track before be left bis friends on the platform, but was under tbe impression that it had stopped some 200 feet east of tbe station. His friends followed him down the steps, but were a little behind him. They saw tbe freight train, which was so close to them when they got down tbe steps that they did not go upon tbe track. When Proctor went upon the track tbe freight train was about 50 or 60 feet behind, him, and was moving about 6 or 8 miles an hour. He could have seen tbe train bad be looked up then, but [100]*100lie did not do SO'. The engineer, at first supposing that Proctor was going across to the passenger train, did not pay any attention to him; but after he started down the track, and seemed oblivious to the train’s approach behind him, the engineer began whistling. He made six or seven short blasts of the whistle, and just after this the engine struck-Proctor. Proctor perhaps did not notice- the signals given by the freight train on account of the fact that the bell of the passenger train was ringing and that engine was blowing off steam, or it may be that they made no impression on him, as he had the passenger train.in mind. A number of persons about the station heard the alarm signals by the train, and saw Proctor walking down the track after these signals were given, though, of course, the whole occurrence occupied only a few seconds. According to■ the plaintiff’s evidence he was about five feet west of the plank walkway when struck; but according' to the defendant’s evidence he was struck about 5 feet east of the walkway. The defendant’s evidence- tended to- show he was intoxicated at the time. His evidence was to the effect that he was sober. Proctor filed suit against the railroad company and John Coche, the engineer of the freight train, to recover for his injuries. The jury found in his favor, and fixed the damages at $7,500, and the defendants appeal.
The railroad company filed its petition for the removal of the case to the Cirenit Court of the United States. The court properly overruled this motion, as there was a joint cause, of action stated against the railroad company and the engineer, who was a resident of this State. See Illinois Central Railroad Com[101]*101pany v. Houchins, 121 Ky., 89 S. W., 530; 28 Ky. Law Rep., 499, and cases cited.
Tlie court on the trial allowed the plaintiff to read in evidence the following rule of the railroad company: “When, a train of inferior class meets a train of superior class on single track, the train of inferior class must take the siding and clear the train of superior class five minutes. A train of inferior class must keep five minutes off the time .of a train of superior class following it.” This rule was incompetent. It had no application to the facts of the case. There was an order for the two trains to meet at Bpring Lick that day. The passenger train was ordered to wait there for the freight. The company which made the rule could, if it saw proper, give orders for its business to be done in a different way. Resides, the rule was simply intended to prevent collisions. between trains. It did not require, the freight train, when it got upon the side track, to remain in the same place. It only required it to clear the siding.
To illustrate the effect that was given the rule on the trial before the jury, we quote the following from the concluding argument of the plaintiff’s attorney, which was objected to by the defendants., and was allowed over their objection: “Let us see what are the undisputed facts in this case. The first fact about which we discover there is no controversy in this ease is this: That the freight train on that occasion was violating one of the rules of the company, that five-minute rule that under the rule of the company it ought to have been on the siding at least five minutes ahead of the time of the passenger train. What is the idea of that? It is to prevent a collision. It is to secure the safety of the public. But, says my [102]*102friend Wortham, there is nothing in that. These engineers and conductors had time orders. -They knew, gentlemen of the jury, before coming here, that the conduct of the engineer and conductor of that freight train would be under investigation here. They knew that we were charging that they were negligent in the management of that engine and train; and why didn’t they bring that time order here ? That would explain their unexpected presence at that depot at that time. Why, no. Where is the order? No. Dr. MeKenney can be brought here to testify about the breath of Proctor; but that order, that, would explain, perhaps, your presence on that siding at that time, they didn’t think of it. It wasn’t necessary. But sup>pose it was here. I do not say that they did not receive the order. I am perfectly willing, for the purposes of this case, to assume they had it. If they had that order, it only brings their negligence more directly home to higher authority-than to- the engineer or conductor of that freight train. It fixes it upon the train dispatcher. ” The introduction of this rule before the jury w'as very prejudicial to the defendants, in view of this argument based upon it by counsel in his closing speech, which, though challenged by the defendants, was in effect sustained by the circuit court. Counsel, also, in his concluding argument, said this, which was objected to by the defendants, and their objection overruled: “No verdict you can render, gentlemen, will ever sufficiently compensate him for what he has suffered. The wealth the millions upon millions owned by this defendant, if it were given to him, would not make good to him the loss that he has sustained. I had no stenographer to take down your speech. Poor Proctor could af-[103]
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OPINION by
Chief Justice Hobson.
— Reversing.
Spring’ Lick, in Grayson county, is a station on tlie Illinois Central- Railroad. The railroad passenger platform is on the south side of the main track. North of the main track, and about 8 feet from it, is a side track, and north of the side track the depot is located, with a plank walk about 5 feet wide leading over from it to the passenger platform. The waiting room is in the west end of the building, and the walk runs across to it. The building is about 40 feet long. Z. T. Proctor, who lived at Leitchfield, desired to take the afternoon train home. When the train was com[99]*99ing, but some distance away, be beard it whistle, and went to tbe east end of tbe station, and at tbe window of tbe office asked if tbe agent was. in. He was told that tbe agent was not in. He then entered into a conversation with two men be met on tbe platform, and sat down on a chicken coop, talking with them, until tbe passenger train pulled in. Tbe engine of the passenger train stopped a little east of tbe station. About tbe time that tbe passenger train arrived, a freight train, which bad orders to meet it there, also arrived, going west, and began pulling in. on tbe side track at tbe end east of tbe station to make room for the passenger train to pass it. After Proctor bad talked to bis friends a few moments, be got up, saying that be must get on tbe train, and went down tbe steps leading from tbe platform on which be was sitting, and, when he reached tbe side track, turned and walked down in the middle of tbe track, evidently with a view of walking back to where tbe passenger coaches were and then getting on the train. "While be was walking along tbe track, tbe freight train, which was getting out of the way of tbe passenger train, came up behind him and collided with him, cutting off one foot and injuring tbe other. He saw tbe freight train on the side track before be left bis friends on the platform, but was under tbe impression that it had stopped some 200 feet east of tbe station. His friends followed him down the steps, but were a little behind him. They saw tbe freight train, which was so close to them when they got down tbe steps that they did not go upon tbe track. When Proctor went upon the track tbe freight train was about 50 or 60 feet behind, him, and was moving about 6 or 8 miles an hour. He could have seen tbe train bad be looked up then, but [100]*100lie did not do SO'. The engineer, at first supposing that Proctor was going across to the passenger train, did not pay any attention to him; but after he started down the track, and seemed oblivious to the train’s approach behind him, the engineer began whistling. He made six or seven short blasts of the whistle, and just after this the engine struck-Proctor. Proctor perhaps did not notice- the signals given by the freight train on account of the fact that the bell of the passenger train was ringing and that engine was blowing off steam, or it may be that they made no impression on him, as he had the passenger train.in mind. A number of persons about the station heard the alarm signals by the train, and saw Proctor walking down the track after these signals were given, though, of course, the whole occurrence occupied only a few seconds. According to■ the plaintiff’s evidence he was about five feet west of the plank walkway when struck; but according' to the defendant’s evidence he was struck about 5 feet east of the walkway. The defendant’s evidence- tended to- show he was intoxicated at the time. His evidence was to the effect that he was sober. Proctor filed suit against the railroad company and John Coche, the engineer of the freight train, to recover for his injuries. The jury found in his favor, and fixed the damages at $7,500, and the defendants appeal.
The railroad company filed its petition for the removal of the case to the Cirenit Court of the United States. The court properly overruled this motion, as there was a joint cause, of action stated against the railroad company and the engineer, who was a resident of this State. See Illinois Central Railroad Com[101]*101pany v. Houchins, 121 Ky., 89 S. W., 530; 28 Ky. Law Rep., 499, and cases cited.
Tlie court on the trial allowed the plaintiff to read in evidence the following rule of the railroad company: “When, a train of inferior class meets a train of superior class on single track, the train of inferior class must take the siding and clear the train of superior class five minutes. A train of inferior class must keep five minutes off the time .of a train of superior class following it.” This rule was incompetent. It had no application to the facts of the case. There was an order for the two trains to meet at Bpring Lick that day. The passenger train was ordered to wait there for the freight. The company which made the rule could, if it saw proper, give orders for its business to be done in a different way. Resides, the rule was simply intended to prevent collisions. between trains. It did not require, the freight train, when it got upon the side track, to remain in the same place. It only required it to clear the siding.
To illustrate the effect that was given the rule on the trial before the jury, we quote the following from the concluding argument of the plaintiff’s attorney, which was objected to by the defendants., and was allowed over their objection: “Let us see what are the undisputed facts in this case. The first fact about which we discover there is no controversy in this ease is this: That the freight train on that occasion was violating one of the rules of the company, that five-minute rule that under the rule of the company it ought to have been on the siding at least five minutes ahead of the time of the passenger train. What is the idea of that? It is to prevent a collision. It is to secure the safety of the public. But, says my [102]*102friend Wortham, there is nothing in that. These engineers and conductors had time orders. -They knew, gentlemen of the jury, before coming here, that the conduct of the engineer and conductor of that freight train would be under investigation here. They knew that we were charging that they were negligent in the management of that engine and train; and why didn’t they bring that time order here ? That would explain their unexpected presence at that depot at that time. Why, no. Where is the order? No. Dr. MeKenney can be brought here to testify about the breath of Proctor; but that order, that, would explain, perhaps, your presence on that siding at that time, they didn’t think of it. It wasn’t necessary. But sup>pose it was here. I do not say that they did not receive the order. I am perfectly willing, for the purposes of this case, to assume they had it. If they had that order, it only brings their negligence more directly home to higher authority-than to- the engineer or conductor of that freight train. It fixes it upon the train dispatcher. ” The introduction of this rule before the jury w'as very prejudicial to the defendants, in view of this argument based upon it by counsel in his closing speech, which, though challenged by the defendants, was in effect sustained by the circuit court. Counsel, also, in his concluding argument, said this, which was objected to by the defendants, and their objection overruled: “No verdict you can render, gentlemen, will ever sufficiently compensate him for what he has suffered. The wealth the millions upon millions owned by this defendant, if it were given to him, would not make good to him the loss that he has sustained. I had no stenographer to take down your speech. Poor Proctor could af-[103]*103lord no such luxury. No, gentlemen. From your verdict there is no appeal. My friend here, a moment ago almost became ecstatic in Iris .tribute to justice-, in his love of justice, and in his client’s love of justice, and he represents his client and all other corporations as standing out in front of your court house here and asking to be admitted. That is not the way I have found it. ' You generally want to get away from here is my observation. There is a great big institution in Louisville, that has got a clock and a tower upon it pointing to the- stars, with a very distinguished federal judge presiding in that august tribunal; and it is there where you would love to be at home, not here.” Such arguments should never be allowed. They are calculated to prejudice the jury. It was immaterial, so far as Proctor was concerned, whether the freight train was late or not.
The statement of. Lee Swift as to what was said by a man whom he took to be the engineer of the freight train just after the accident should have been admitted to the jury, but with the admonition that it was not to be considered by them unless the remark lie testified to was made by the engineer or the fireman of the freight train. The statement was competent as part of the res gestae. The witness did not know the'trainmen; but his description of the man! who made the remark, under all the evidence in the case, was sufficient for- the admission' of the evidence, for, from the engineer’s own testimony and language testified to by Swift, the jury were warranted in believing that he was the man who said this.
The -court, among other things, gave the jury these, instructions:
“(I) Although the jury may believe from the evi-[104]*104deuce that the plaintiff was guilty of contributory negligence, and was a trespasser in going upon or walking upon defendant company’s railroad track, at the time he did, yet if they further believe from the evidence' that the defendant Coche', who was the defendant company’s engineer in charge of and operating the engine thereof, discovered plaintiff’s peril in time to have avoided injuring him and negligently failed to do ■ so, the law is for the plaintiff, and the jury should find for the plaintiff against both of the defendants the damgaes he thereby sustained.
“(5) The jury are further instructed that at the time of the injury to the plaintiff he was, under the evidence, a trespasser upon defendant’s track, and the defendants owed him no duty until his danger and peril became known1 to defendant’s servants in charge of its engine, and after his danger became known to them it was then their duty to use all reasonable means at their command to avoid injuring him; and if the jury believe from the evidence that those in charge of said engine', (after becoming aware of plaintiff’s danger), did use all reasonable means at their command to avoid injuring him, then the law is for the defendants, and the jury should so find. But, however, if the jury believe from the evidence that those'in charge of said engine, after they became aware of plaintiff’s danger, did not use all reasonable means at their command, to avoid injuring plaintiff, then the law is for the plaintiff, and the jury should so find.”
Proctor was not at the time a trespasser upon the track of the railroad company, but was a passenger. When a railroad is so constructed that a passenger is required to cross the company’s intervening tracks [105]*105to 'get from the station to Ms train, .or to leave the train, it is not negligence in itself for Mm not to look and listen for approaching trains. He has a right to assume that the company will so regulate its trains that the tracks will be free from danger when the passenger train stops at a station to receive and deliver passengers. Shearman & Redfield on Negligence, section 525; 3 Thompson on Negligence, section 2988; Warner v. B. & O. R. R. Co., 168 U. S., 339, 18 Sup. Ct., 68; 42 L. Ed., 491.
The rule in this State is that, if there is any evidence of negligence, the question is for the jury. Under this rule and the law as above stated the court properly refused to give a peremptory instruction to the jury to find for the defendants. It was a question for the jury, under all the proof, whether the- engineer used proper care in running the train down past the station as lie did while the pasenger train was receiving and,landing passengers, whether he exercised proper care after seeing Proctor on the track, and whether Proctor exercised proper care for his own safety or brought about the injury by his own inattention. While Proctor was a passenger, he was where a pasenger was not authorized to be, and while walking along the side track he could not demand of the railroad company the high degree of care due from a carrier to its passengers. L. & N. R. R. Co. v. Ricketts, 93 Ky., 116; 14 Ky. Law Rep., 19; 19 S. W., 182. Still it was a place where considering that the depot was on one side of the track and the passenger train had stopped to take passengers on the other side, the . presence of persons on the track should reasonably be anticipated.
In lieu vof instruction 4 and 5 the court on another [106]*106trial will instruct the jury that it was incumbent on. the defendant, in running the freight train, to exercise a reasonable degree of care, commensurate with the danger for the safety of persons passing to and fro from the passenger train and the station; that to this end reasonable warning of the approach of the train should he given, reasonable lookout should he maintained, and the train should he run at a reasonable rate of speed; that Proctor had the right to anticipate that such care would he used, but that, in walking along the side track, it was incumbent on him to use such care and attention as may be usually expected of persons of ordinary prudence under like circumstances, and that when the engineer -saw Proctor come upon the track he had the right to assume that Proctor would leave the track, and was not required to check the speed of the train or to take precautions for his safety until he had reason, from Proctor’s conduct or the circumstances, to believe, he was not aware of the approach of the train or would not leave the track. As a qualification to instruction 2, given by the court on contributory negligence, the court should add these words: “Unless, after the plaintiff’s negligence had placed him in danger, the engineer of the freight train perceived, or by ordinary care could have perceived, his danger in time to avoid the injury to him by ordinary care on his part.’’ L. & N. R. R. Co. v. Lowe, 118 Ky., 260; 80 S. W., 768; 25 Ky. Law Rep., 2317; 65 L. A. R., 122. The court should also instruct the jury that, if the plaintiff w'as intoxicated at the time, this would' not affect the rights'of the parties, unless by reason of his. intoxication he failed to exersice such attention and care for his own safety as may be usually expected of a sober [107]*107person of ordinary prudence under like circumstances, and in that case the rights of the parties are as set out in instruction 2. L. & N. R. R. Co. v. Cummins, 111 Ky., 333; 23 Ky. Law Rep. 681; 63 S. W. 594.
We see no other error in the record, but for the reasons given the judgment is reversed, and cause remanded for a new trial.