
    Cincinnati, New Orleans and Texas Pacific Railroad Co. v. Mayfield’s Admr.
    (Decided November 10, 1911.)
    Appeal from the Boyle Circuit Court.
    1. Railroad- — Lookout—Negligence.—Tbe failure of those in charge of. an engine to give reasonable warning of its approach or to maintain a reasonable lookout when the engine is backed in the dark without adequate light upon it at a point in the yards much frequented where the presence of persons on the track should reasonably be anticipated, is negligence for which the company is answerable to one thus run over by the engine.
    2. Contributory Negligence.- — -One who sits down upon a railroad track and goes to sleep is guilty of such contributory negligence that he cannot recover although there was negligence on the part of those in charge of the train if his danger was discovered too late to avoid injuring him.
    CHAS. H. RODES, JOHN GALVIN, GEORGE E. STONE for- appellant.
    ROBERT HARDING for appellee.
   Opinion op the Couet by

Chief Justice Hobson

Affirming.

On July 30,1909, between 11 P. M. and 12 P. M., Norman Mayfield was killed in tbe yards of tbe Cincinnati, New Orleans and Texas Pacific Eailroad Company at Danville, Kentucky. He was in tbe service of tbe company firing an engine called a clam shell and used in handling coal. His father, George W. Mayfield,_ operated the engine. Shortly before midnight he, with the permission of his father, left the clam shell to go to a restaurant and get a lunch. In going to the restaurant he went across the railroad yard. At this time a live engine was backing in on one of the tracks with a dead engine in front of it; that is, both engines were backing but the dead engine was backing in front of the live engine. Ed Weddle, the engineer in charge of the' live engine, was in the cab of that engine, and W. L. Hudson, a brakeman, was in the front of the tender of the dead engine with a lantern in his hand; that is, he was on the end ■ of the tender that was in front as the engine was backing along. As they were proceeding in this .way the front wheels of the front trucks ran over Norman Mayfield’s legs, injuring him so that he died soon thereafter. This action was brought by his personal representative to recover for Ms death against the railroad company, Weddle, the engineer, and Hudson, the brakeman. The proof for the plaintiff on the trial showed that young Mayfield left the clam shell and within from two to five minutes thereafter his father was called by sone one who told him that his son had been hurt. He went at once to the place and found his son about sixteen feet back from the front of the tender. The proof for the plaintiff also showed that the place in the yard where the injury occurred was one much used by persons passing about; that there were no lights on either engine and that no bell was rung or signal given of their movement. On this evidence the court instructed the jury peremptorily to find for Hudson, but refused to instruct the jury peremptorily to find for the other two defendants. The defendants then introduced their evidence. Hudson testified that he was standing at the front of tender with a lantern in his hand, and when he got within eight feet of Norman Mayfield he discovered him sitting on the track with his head bent over his knees; that he signalled the engineer to stop and jumped from the tender and tried to pull Mayfield off the track but before he could get him off part of his clothing was caught by the tender and the front wheels passed over his legs before the engine could be stopped. Weddle confirmed the testimony of Hudson, but he and Hudson both state that it was a dark night and that the engine bell was not ringing; that no signal of the approach of the engine was given except that Weddle whistled when they started in on this track, five or six hundred feet away from the point where Mayfield was struck. They also agreed that there was no light about the dead engine except the lantern held by Hudson and the proof is not clear, that this light was so held as to be seen bv one in front. The case was submitted to a jury under this evidence, and they returned a verdict in favor of. the plaintiff against the railroad company and Weddle in the sum of $5,000. The court entered judgment on the verdict and refused a new trial. The defendants appeal.

It is earnestly insisted that Mayfield was asleep upon the railroad track and there is much in the evidence to sustain this view. „ But this matter was clearly submitted to the jury by the instructions of the court. Instruction 7 given by the court is as follows:

‘ ‘ The court instructs the jury that'if they believe from the evidence that Norman Mayfield voluntarily went upon the track of the defendant company and sat down upon same and placed Ms head down upon Ms knees and this was Ms position at the time lie was run upon and-injured by defendant company’s engine, then, be, tbe deceased, Norman Mayfield, was guilty of such contributory negligence as bars tbe plaintiff’s right to recover, and they will find for tbe defendants, notwithstanding you may believe from tbe evidence that tbe defendants were guilty of negligence as stated in Instruction No. 1.”

Tbe finding of tbe jury for tbe plaintiff under this instruction is a finding by them that tbe injury did not occur as stated by Hudson. Tbe credibility of the witnesses is for tbe jury and we cannot disturb tbe verdict on tbe ground that it is palpably against tbe evidence. It is also insisted for tbe defendant that Mayfield bad a safe way to go to tbe restaurant and that be voluntarily went across tbe yard incurring a danger that be need not have incurred. But this matter was also aptly submitted to ¿be jury by tbe instructions of tbe court, and we do not see that the defendants’ substantial rights were prejudiced in any way as to this matter.

Tbe court did not-err in refusing to instruct tbe jury peremptorily to find for tbe defendants. According to tbe evidence for tbe plaintiff tbe place was one where tbe presence of persons might reasonably be expected. It is within tbe corporate limits of Danville and employees were constantly moving about in this part of the yard. In a number of cases we have held that cars should not be moved in sucb places without a reasonable signal of their approach or without a reasonable lookout or light on them when it is dark. (Shelby v. C. N. O. & T. P. R. R. Co., 85 Ky. 224; Conley v. C. N. O. & T. P. R. R. Co. 89 Ky. 402; L. & N. R. R. Co. v. Potts, 92 Ky. 30; Dunn v. C. N. O. & T. P. R. R. Co., 108 Ky. 561; L. & N. R. R. Co. v. Lowe, 118 Ky. 260.) Tbe court gave tbe jury this instruction :

“1. - If you believe from tbe evidence that the track and place in tbe defendant’s yard where Norman May-field was run over and injured was habitually and frequently used by tbe employees of tbe company in going to and from their place of work therein to their meals, and to tbe machine shop with tbe knowledge and acquiescence of tbe defendant, and was a place where tbe presence of employees of tbe company was to be anticipated, and that deceased was going from bis work to his midnight supper when struck, then it is the duty of the defendants when moving on that part of the track where he was injured to keep a lookout for employees using it as a footway, and to give reasonable signals and warning of the movements of its engines when approaching said place, and if you believe from the evidence that the defendant in charge of the company’s two engines mentioned in evidence negligently failed to perform either or both of these duties in the movement of said engines, and that by reason thereof the plaintiff’s intestate, Norman Mayfield, while so on the track at said place, was run upon and received injuries from which he died by said train and that he was. at the time using ordinary care for his own safety, then you will find a verdict for the plaintiff against the defendants, Cincinnati, New Orleans & Texas Pacific Railway Company and Ed. Weddle, and if you do not so believe from the evidence you will find for the defendants.”

The instruction conformed to the rule laid down in the cases above referred to. There was sufficient evidence that the place where Mayfield was struck was habitually and frequently used by employees of the company in going to and from their place of work, and it was a place where the presence of persons should reasonably be anticipated.

Judgment affirmed.  