Opinion of the Court by
Judge Hobson
Reversing.
Barnsley, Ky., is a town of the sixth class. It has from 400 to 500 inhabitants. It is a mining town. The Louisville & Nashville Railroad runs through it. There are two stores — one on one side of the railroad, and one on the other. A path runs from- one of these Hores directly across the railroad to a street on the opposite side, the town lying about equally on each side of the railroad. This path was considerably used by the people of the town in passing to and fro, from 50 to 100 people passing along it every day. There was a street crossing over the railroad about 200 feet north of the path, and about midway between the path and the street wa.s the railroad station. About 800 feet south of the path there was another crossing. In April, 1905, Mary McNary, a woman about 70 years old, was walking along this path going east towards Clark’s store. She had on a bonnet, and was not looking out for the train, and just as she got on the [412]*412track she was struck and killed by a fast passenger train coming from the south, and running 40 or 50 miles an hour. The train was a through express, which stopped at only three or four points in the State, and did not check its speed at Barnsley. Persons in the northern part of the town in going to the depot were accustomed to walk along the street north of it until they came to the railroad crossing, and then to walk along the railroad track to the depot. Persons in the southern part of the town followed the path to the railroad'track, and then walked along the track to the depot. The path was also used by persons on one side of the railroad to- go to the other side. The situation is shown by the following plot, on which A indicates the point where the woman was struck:
[413]*413The only witness for the plaintiff who saw the occurrence was at the house next to Clark’s store, and thus states what occurred: “Me and Dona Thomasson was there, and when I came to the door I seen this old lady coming along the dirt road. She was over six feet from the railroad track, and she was coming on across, and the train was coming down here about 30 feet from here. Mlrs. Young and her two-little boys and I were looking and I never seen the train blow a whistle or ring a bell until it hit her. It hit her, and come on- up to a telephone post, and whistled two little short whistles-, cleared the crossing, and whistled five times.”
Mrs. Young’s testimony was introduced by the defendant, and was as follows-: “I saw Mary McNary killed. The accident occurred right in front of my dwelling. I lived in Barnsley on the east side of the point of accident about 30 or 40 yards from the track. My house was the nearest house to the track. I saw Mary McNary come upon the track from the west side to the track just opposite my house. Just as she stepped to the track the train whistled, and she ran across the track, but before she got across she was struck and pitched on the east side of the track. "When she came upon the track she had on a bonnet, and did not look up or down the track, but was looking down to the ground.' If she had looked up the track when or before she stepped upon the track she could have seen the approaching train for a long distance.”
The track, as shown by the map, makes a slight curve just north of the path, and passes through a cut. The engineer of the train testified that the fireman called his attention to the- woman, and almost simultaneously with his exclamation she appeared on [414]*414his side. The fireman being on the left side would naturally see her first, and as shown- on the plot neither of them could see her until they were very close to her. The train was running at its usual speed at that point. There was considerable proof for the plaintiff by witnesses who testified that there were no signals given of the approach of the train, and on the other-hand there, was proof for the defendant by a number of witnesses that the signals were given. The jury found for the plaintiff, fixing the damages at $1,235. The railroad company appeals-. .
It is very evident from- the proof that those in charge-' of the train did not see the woman, and could, not have seen- her in time to avoid striking her. She was hid from them by the cut until they were so close to her that nothing could be done. She was evidently on the track when they saw her, and they were then so close to her that she was struck by the train before she could get out of the way. She was not on a public crossing. It was simply a path across the railroad, similar to many others on all railroads used by people in the- vicinity. The railro-ad men -testify that they did not know anything of the path. This court has laid down in a long lin-e of opinions that the railroad company ordinarily owes no duty to a trespasser - until his p-eril is discovered, and that it is not liable--for an injury to him, unless after Ms p-eril is discovered the injury to him may be avoided with proper care. This rule has been applied in all cases where the injury occurred in the country. L & N. R. R. Co. v. Howard’s Adm’r, 82 Ky. 212, 6 Ky. Law Rep. 163; Shackelford’s Adm’r v. L. & N. R. Co., 84 Ky. 43, 7 Ky. Law Rep. 729, 4 Am. St. Rep. 189; Brown’s Adm’r v. L. & N. R. Co., 97 Ky. 228, 17 Ky. Law Rep. 145, 30 S. W. 639; Goodman’s [415]*415Adm’r v. L. & N. R. R. Co., 116 Ky. 900, 77 S. W. 174, 25 Ky. Law Rep. 1086, 63 L. R. A. 657; C. & O. R. Co. v. See’s Adm’r, 79 S. W. 252, 25 Ky. Law Rep. 1995, and cases cited.
On the other hand, in cities and towns where the population is dense, and from the number of persons passing the danger to life is great, a different rule applies; and in such localities it is the duty of those operating railroad trains to moderate the speed of the train, to give notice of its approach, to keep a lookout and take such precautions as the circumstances demand for the proper security of human life. Thus in Shelby’s Adm’r v. Cincinnati, etc., R. Co., 85 Ky. 225, 8 Ky. Law Rep. 928, 3 S. W. 157, the intestate a few hours before his death had been employed by the owner to water hogs in a box car of a freight train-. At the time he was killed he was in, the yard to solicit employment by the same person in watering cattle in a car of another train, and was standing on the side track opposite the cattle car waiting for the owner who was in it. While he was standing there some ears were kicked in on that track without any signal and with no one upon them to control them. These cars ran over him and killed him. The accident happened at Junction City, a place of 400 persons. About 20 families resided south of the railroad and were accustomed to pass along the side track at this point in going to the part of the town north of the road. It was held that the plaintiff could recover. The court said: “There is some conflict of authority as to the extent of- duty which a railroad company owes-to pedestrians who, by license or custom, use its track to travel on. But unquestionably such fact should enhance the duty of the servants .of the company to- exercise caution and [416]*416prudence in the operation'of its road at such place. 1 Thompson on Negligence, 453. And in our opinion the full performance of duty requires that neither a train or single ear should be moved at such place without some servant is in a position to give warning of its approach and control its movements.” In L. & N. R. Co. v. Schuster, 7 S. W. 874, 10 Ky. Law Rep. 65, the plaintiff was hurt on the track of the Louisville & Nashville Railroad between Beargrass creek and' its depot in the city of Louisville. There was at the place a fill 20 or 30 feet high, and about 23 feet wide at the top. On this fill there were two tracks. Buchanan street had been constructed to within 150 or 200 feet of this fill on the south side, but no street passed the fill or came nearer than this. The plaintiff and a companion came along Buchanan street, and then followed a path over the railroad fill When they got upon the top of the fill a train was passing them on one track, and while they were standing upon the other track waiting for this train to pass Schuster was struck by a train going in the opposite direction on the track on which he was standing. Many persons lived and worked in the yicinity, and there was much passing along the railroad track at this point. It was held that he could recover. The court said: “The degree of care to be exercised by a railroad company must necessarily depend upon the location and the circumstances of the case. At places not frequented by the public, either by right or the permission, express or implied, of the company, and in localities where people are not constantly passing about, and where they cannot reasonably be expected to be, those in charge of a train are not required by law to be on the lookout for them. In such cases the company is entitled to the exclusive [417]*417use of its track, and those upon it are trespassers, and those in charge of a train are only required to avoid injury to them if they can do so upon becoming aware of their peril. In a place thickly populated, however, and where many persons are known to be constantly passing about and across the road* as in a city like Louisville, the public interest and regard for the safety of human life require a different rule. In such a case those in charge of such a dangerous agency as a railroad train must be on the lookout for persons upon and crossing its tracks, and must, by the customary signals, warn them of the approaching danger. This rule should be rigidly enforced.” In Conley’s Adm’r v. Cincinnati, etc., R. Co., 89 Ky. 402, 11 Ky. Law Rep. 602, 12 S. W. 764, Conley was killed at Burgin, Ky., a place of about 200 people. A train pulling into Burgin was cut in two about a mile north of the station, the engine running rapidly forward with a part of the cars, and leaving the hinder part of the train to follow on more slowly by its own momentum. It was at night, and dark. There was no light upon the hinder part of the train, and no signal given of its approach. After the engine with its cars had passed the station Conley undertook to walk from the depot across to the section house either on the path leading from one to the other or near the patch, and while doing so was struck by the hinder part of the train which had no light upon it, and gave no warning of its approach. It was held that he could recover. In Gunn v. Felton’s Receiver, 108 Ky. 561, 22 Ky. Law Rep. 268, 57 S. W. 15, a child 13 years of age suffering from headache fell asleep in the yard of the railroad at Danville. One of his arms rested upon the railroad track. While lying there in this position he was run over by a [418]*418train. . The place:at which, he was hurt was one where the presence of, persons on the track, was to. he anticipated. .It was held, that it was the duty of.the defendant to he on the lookout and use ordinary care for the protection of such persons. In C. & O. R. Co. v. Perkins, 47 S. W. 259, 20 Ky. Law Rep. 608, Perkins lived in Lexington, and was walking along the railroad track east of Ellerslie avenue, and between it and the Winchester pike. The roadway along there was much used by people in passing to and fro. He was struck by a train coming up behind him, and a recovery was sustained on the .ground that a. proper lookout was not maintained. In L. & N. R. Co. v. McCombs, 54 S. W. 179, 21 Ky. Law Rep. 1233, McCombs was following a path across the railroad track in the city of. Hopkinsville. There were two cross-streets with reg'ular crossings, but he left the public way and undertook.to cut across a lot by following the. path which was much used.by persons in .that vicinity, Pie crawled under a freight train on one track, and was afterward struck by a passenger .train on another track running at. a very high rate, of speed. It was held the case should go to the jury upon the ground that it was the duty of, the railroad to moderate the speed of its.trains in localities such as that. In C. & O. R. Co. v. Keelin’s Adm’r, 62 S. W. 261, 22 Ky. Law Rep. 1942, the intestate was killed in Catlettsburg at a point where, many persons walked upon the railroad track, while he.was standing on one track waiting for a train on the other track to pass. A recovery was sustained. The principles involved in these cases have been followed in a number of subsequent opinions. See L. & N. R. Co. v. Potts, 92 Ky. 30, 13 Ky. Law Rep. 344, 17 S. W. 185; L. & N. R. Co. v. Cummins’ Adm’r, 111 Ky. 333, 23 Ky. Law [419]*419Rep. 681, 63 S. W. 594; L. & N. R. Co. v. Lowe, 118 Ky. 260, 80 S. W. 768, 25 Ky. Law Rep. 2317, 65 L. R. A. 122; I. C. R. Co. v. Murphy’s Adm’r (Ky.) 97 S. W. 729, 30 Ky. Law Rep. 93, 11 L. R. A. (N. S.) 352; Rader’s Adm’r v. L. & N. R. Co. (Ky.) 126 Ky. 722, 104 S. W. 774, 3l Ky. Law Rep. 1105; L. & N. R. Co. v. Taylor’s Adm’r (Ky.) 104 S. W. 777, 31 Ky. Law Rep. 1142, and cases cited.
The court here instructed the jury in effect that, if the place was habitually used by the public with the knowledge of the defendant, and the presence of persons on the track there was reasonably to be anticipated by it, it was its duty'to keep a lookout for them, to give such signals of the approach of the train as were reasonably necessary, and to run its train at such speed as ordinary care for their safety required that if it failed .to do this, and by reason of such failure the intestate was killed, they should1 find for the plaintiff; but that, although there was negligence on the part of the defendant, yet, if the intestate failed to use ordinary care for her own safety, they should find for the defendant. He also instructed the jury that they should find for the defendant if a signal of the approach of the train was given which was ordinarily sufficient to give notice thereof to persons exercising ordinary care for their own safety. The finding of the jury for the plaintiff under the instructions was necessarily a finding that the train did not give notice of its approach ordinarily sufficient to warn persons who were exercising ordinary care for their own safety, and that' the intestate did exercise ordinary care for her own safety. The evidence was very' conflicting as to the signals given by the train; but the jury were warranted from all the evidence in concluding that the train whistled for [420]*420the crossing 800 feet south of the-pathway at which the plaintiff was crossing, but that it did not whistle any more or give any other signal of its approach until about the time it struct the woman. The sounds may have been deflected by the sides of the cut so that the woman as she approached the railroad track heard neither the whistle nor the noise .of the approaching train. It was running so rapidly that it covered the distance in a very few seconds, The woman manifestly could have seen the train if she had looked in that direction just before she went upon the track, but she had' a right to assume that notice of the approach of a train would be given; and where proper signals are not given this court has held in a number of cases that the question- whether the traveler used ordinary care is for the jury. Cahill v. Railroad Co., 92 Ky. 345, 18 S. W. 2, 13 Ky. Law Rep. 714; L. & N. R. Co. v. Cooper, 56 S. W. 144, 21 Ky. Law Rep. 1644; L. & N. R. Co. v. Lucas’ Adm’r (Ky.) 98 S. W. 309, 30 Ky. Law Rep. 359, 539, and cases cited above. To hold as a matter of law that the footman is guilty of contributory negligence barring a recovery for his injury whenever he goes upon a railroad track without stopping, looking, or listening would be practically to. exempt railroads from all responsibility in cases of this sort; for there areffew cases indeed where- the footman if he. stopped, looked, or listened could not save himself by stepping to one side and waiting for the train to- pass. But the fact is that a person thinking of hig own. business is sometimes unmindful- of where he is, and will get on the railroad track before, he is aware of it, or he will from other causes be endangered from passing trains. So it is that in crowded localities, when the presence of persons on the track is to be anticipated, a lookout [421]*421is required of those operating trains, and notice of their approach and such moderation of speed as will make a lookout and signals of the train’s approach available for the safety of the traveling public. In each case the question whether the traveler used proper care will depend on a number of circumstances, such as the number of trains passing, the warning of the train’s approach, and the circumstances surrounding him. In this State if there is any evidence the question is for the jury, and the scintilla rule applies to questions of contributory negligence no less than to other questions. "Where the scintilla rule does not prevail, a different conclusion is reáched by the courts; but where the scintilla rule is followed, the cases are in the main in accord with the conclusion stated above, for the reason that whether the traveler exercised such care as may be ordinarily expected of the common run of persons being a question depending on a number of circumstances', to each of which different men may give different weight, is a matter peculiarly for the jury.
If the carrier had shunted cars down this track in the nighttime, with no light upon them, and with nobody on the cars to control them, and had thus run over the woman at the path crossing, under the authorities above referred to, it would have been liable. But to run a train along there without sufficient notice of its approach at such speed that those in charge of it were powerless to accomplish anything by a lookout after they rounded the curve in the cut was just as great a menace to human life as to have shunted the cars along the track in the dark in the manner supposed. While the men in charge of the train naturally knew nothing about the path at this "station, where they did not stop, the defendant was charged with [422]*422the knowledge that Barnsley was an incorporated town of 400 or 500 people. It was also charged with the knowledge that its depot was approached both ón the north and on the south by persons walking along-the railroad track, there being no other adequate way to get to it; and so it was charged with knowledge that this was a place at which the presence of persons on the track might reasonably be anticipated. If the woman had been killed at the street crossing, under the proof before us, it could hardly be maintained that the company would not be liable. But it is insisted that the fact that she was at a private crossing, and was not going to the station, exempts it from liability. This would be true but for the fact that the private crossing was in a town' where the presence of persons on the track was to be anticipated, and where the defendant- was required to keep a lookout for them, and to give adequate notice of the approach of the train. It was peculiarly necessary that adequate notice of the approach of the train should be given, and that the speed of the train be such, that the lookout would not be idle, as the train passed through the cut and emerged from a curve within the town, and so close to the station where the presence'of persons on the track or about it was réasonably to be expected.
We, therefore, conclude that the court did not err in refusing to instruct the jury peremptorily to find for the defendant; but there was nothing in the evidence to warrant an instruction on punitive damages, and the court erred in submitting to the jury the question of punitive damages or of gross negligence. On another trial, in lieu of the instructions given the court will instruct the jury as follows: “ (1) The court instructs the jury that if they believe from the evi[423]*423deuce that the track, of the defendant in the town of Barnsley at and about the pathway shown by the Testimony w’as frequently and habitually, used by the public as a footway, with the knowledge and acquiescence of the defendant and was a place where the presence of persons on the track was to be anticipated, then it was the duty of the defendant’s agents, when moving cars on that part of the track, to keep a lookout for persons using it as a footway and to give reasonable signals and warnings of the movements of its cars when approaching said place, and to run its cars and trains at such speed as ordinary care for the safety of such persons required; and if the jury believe from the evidence that the defendant’s agents in charge of its train mentioned by the witnesses negligently failed to perform any of these duties in the movement of said train of cars, and that by reason thereof the plaintiff’s intestate, Mary McNary, while so upon the track at said place, was run upon and killed by said train and that she was at the time using ordinary care for her own safety the law is for they plaintiff, and the jury will so find.. If they find for the plaintiff, they will' award such a sum in damages as they believe from the evidence will reasonhbly compensate the estate of Mary McNary for the destruction of her power to earn money. (2) A signal of the train’s approach was reasonable which was ordinarily sufficient to give notice of its coming to persons who were themselves exercising ordinary care for their own safety and in possession of their ordinary faculties. (3) Unless the defendant’s servants in charge of the train were .negligent as defined in No-. 1, the jury should find for the defendant; and although there was such negligence on the part of the defendant’s servants, yet if in going on the railroad track as she [424]*424did, the deceased failed to use ordinary care for her own safety, and hut for this would not have been injured, then the jury will find for the defendant notwithstanding such negligence on its part.” These instructions, with Nos. 4 and 5 given by the court defining negligence and ordinary care, cover the whole la.w of the case, and no other instructions are necessary.
On another trial the evidence in regard to the defendant’s putting dirt on the top of the dump will he omitted.
Judgment reversed, and cause remanded for a new trial. , -
