
    Case 77 — Action to Recover Damages for Personal Injuries—
    Oct. 9.
    Louisville & Nashville R. R. Co. v. Hocker.
    APPEAL PROM BOYLE CIRCUIT COURT.
    Judgment por Plaintipp and Dependan!: Appeals.
    Reversed.
    Railroads — Employe—Trespasser—Duty op Company — Contributory Negligence.
    Held: 1. A railroad company .owes to unauthorized persons in its switch yards no duty except to exercise ordinary care to avoid injury to them after their peril .is discovered.
    2. Though plaintiff, a train dispatcher, had the right to cross at one place in a switch yard the tracks of defendant railroad company hy which he was employed in order to reach a water closet provided hy defendant for its servants, that did not give him the right to go between cars at another place to urinate, and, having gone there for his own convenience, and not in the discharge of any duty, the company owed him no duty except to avoid injuring him after discovering his peril; and the mere fact that it was possible for the trainmen to see a pafrt of his body which was not concealed was not sufficient to authorize the submission to the jury of the question whether they did see him, when there was no reason to expect his presence there.
    3. Even though defendant was negligent, the contributory negligence of plaintiff was so, great as to preclude him from recovering.'
    C. R. McDOWELL and EDWARD W. HINES, por appellant, (WALKER D. HINES, R. P. JACOBS, H. W. BRUCE, JOHN W. YERKES and B. D. WARFIELD, op counsel.)
    At the time appellant was injured, he was employed as telegraph operator in appellant’s yard at Latonia. He left his office. to go to dinner, intending, as he says, to first go to the water closet used by the employes in the yards.' The way provided from his office- to the closet was down a screenings walk to. South avenue, crossing four or five tracks. At this point a watchman was stationed for -the protection of persons crossing. Plaintiff took a shorter route. After crossing two tracks he concluded to step between some cars to urinate instead of going to the closet. While standing between the cars, other cars were shoved against them in making a switch, and he was knocked down and injured.
    
      The fact that he had the right to cross the tracks at another place did not give him the right to cross .where he was injured, or to use the tracks as a place to urinate, and did not impose upon the servants in charge of switching the duty of keeping a lookout for him except at some ipoint where he might cross. The cars between which he was standing were coupled and there was no reason to expect his presence there, .and there is no testimony that .any servant of the company knew he was there. The fact that he was an employe did not prevent him from being a trespasser.
    But if there was .any negligence on the part of defendant, the contributory negligence of plaintiff was so gross as to preclude .a recovery. He had no business there, and recklessly and unnecesarily placed himself in a dangerous position in which he was not likely to be seen and in this way was in-jured. Eastern Ky. Ry. Co. v. Powell, 17 Ky. Law Rep., 1051; Central R. & B. Co.' v. Ryles, 13 S. E., 585; McDermot, by., &c., v. Ky. Central Ry. Co., 14 Ky. Law Rep., ’ 437; Lingenfelter v. L. & N. R. R. Co., 9 Ky. Law Rep., 117; Brown’s Admr., v. L. & N. R. R. Co., 17 Ky. Law Rep., 145, and cases collected at foot of said case.
    ROBERT HARDING and JOHN W. RAWLINGS, attorney for appellee.
    Appellee’s office .as telegraph operator w.as in the center of appellant’s yards, about 500 feet south of an avenue or street of the town, which ran east .and west across these yards. Leading from this office was a cinder path used by all persons having business with the office; 250 feet northwest of this office is the water closet for the use of the employes. On the day plaintiff was injured he left his ¡office to go to this closet across the yards in the usual way; on his way he says he saw an engine and cars ¡moving up .and down the track, north and south, between him and the closet, that made it dangerous for him to proceed further. The call of nature was urgent, and he .stepped upon the track (which was closed at both ends) between two cars with one half his body exposed to view, to urinate, believing he was in a place of perfect safety and was plainly visible to any one coming from the north. While so engaged the north end of the track was opened and two loaded cars at a high rate of speed thrown against the cars between which he was standing and throwing him with great violence to the ground and injuring permanently his spine.
    We claim that appellee was not a trespasser. His position was one of perfect safety and could only be made unsafe by ap■pellant’s negligence. There was nothing to prevent those in charge of and switching these cars from seeing plaintiff where he stood, ,and his injury is due to appellant’s gross and inexcusable negligence.
   Opinion of the court by

JUDGE BURNAM

Reversing.

This appeal is prosecuted from a judgment of the Boyle circuit court for $2,500 in favor of appellee for personal injuries received in the switch yard of appellant at Latonia in December, 1898, It appears from the testimony that there are 17 or 18 switch tracks in the yards at this point, which connect with the lead tracks, and that they are continuously used by day and night for switching and making up trains, four or five engines being constantly used for this purpose. Appellee was employed by the company as a train dispatcher and telegraph operator. His office or place of business was in what is called the “tower,” which is located in the center of the yard, about 500 feet from one of the public streets of the town of Latonia. A cinder pathway was provided by appellant company from the telegraph office to South avenue, which was used by all persons having occasion to visit the office. At South avenue a watchman was stationed for the- protection of persons crossing the railroad at that point. About 200 feet northwes t of the- telegraph office the company had provided a water-closet for the use of its employes, and there was an unobstructed pathway from the telegraph office to this closet by meaus of the cinder path; the distance, however, being much longer than an air line directly across numerous tracks in the yard. In December, 1898, at about 11:55 a. m., the appellee left the telegraph office to go to his dinner, and, having occasion to stop at the water-closet on his way, went directly across the switch yard to the closet, instead of following the road which had been provided by the company. After lie had crossed two tracks, he discovered'that there was an engine handling cars on the third track, and concluded that it would be dangerous for him to attempt to cross' that track,';*,and thereupon stepped between two high box cars • on the track next to it, and proceeded to urinate, and while so engaged was suddenly knocked down, and received the injuries sued for, by other cars being shoved -against those between which he was standing. He testifies that before going between the cars he noticed a 'white light at the point where that switch connected with the lead track, which indicated that the switch was' closed, ■and that there -were quite a number of other cars standing upon the same track with those between which he stepped; that half his body • and head were visible while he was urinating; that he kept his face turned in the direction of the switch connection; that he knew that the track was liable to be used at any moment, and that it only required about a second to open the switch. There is no claim that any duty to appellant required that appellee should cross the switch yard, or go to the place where he sustained the injury sued for. This course on his part was for his convenience alone in avoiding the longer walk to the closet which had been provided by the company. The law is well settled, both in this State and elsewhere, that a railroad company is not under obligation, in moving its engines and cars in its own switch yard, to take special precautions or give special warnings to avoid injuring any unauthorized person who may, for his. ■own convenience, go therein, until the presence of such person in a situation of danger has been discovered. 2 Thomp. Neg., (2d Ed.) sec. 1706. In the case of McDermott v. Railway Co., where a’boy only 8 years old was injured in the switch yard of the railroad company, this ■court said: “As moving engines and cars to and fro in the yard of the railroad company is indispensable to the' safe and proper conduct of its business, it should be no more obliged to specially look out for the presence of those •who may go there without right than for trespassers on the main track away from the yard. To require the bell to be rung or the whistle blown at every movement of an engine in the company’s yard to and from a coal chute, water tank, or turntable, or to require an extra employe to be placed upon every backing engine simply to warn or look out for the presence of persons having no right or reasonably expected to be there, when not at all necessary for the safety of persons or property legally entitled to care and protection by the company, would be unreasonable and oppressive. And the fact that such trespasser is an infant does not affect the legal rights of the company.” 14 Ky. Law Rep., 437 (20 S. W., 380). In Railroad Co. v. Gastineau’s Adm’r, 83 Ky., 122 (7 R. 3) this court said: “A railroad company has the right to the exclusive use and occupation of its yard and track, except art crossings or such places as the ’public are 'by law ¡authorized to use; otherwise it could not properly perform its duties to the public. It is not required to anticipate an intrusion of others, and one who enters upon their track without authority does so at his peril, and in case of injury can not recover, unless it was wantonly inflicted after the danger was discovered. Its duty to such a person is merely negative. It must not, when it knows of the peril, go on maliciously, or with a disregard of, obvious consequences. It is not required to use care to anticipate and discover the peril of such a person, but only to do so after the discovery of the danger. Until then, no legal duty is imposed, because no .one, by a wrongful act," can impose a duty upon another.” In Brown’s Adm’r v. Railroad Co., 17 Ky. Law Rep., 145 (30 S. W., 639), this court said: “The doctrine as to actionable negligence is that it must be a failure to discharge some duty devolved on the railroad company to the individual entitled! to the right, and not a failure of duty to others than himself. A trespasser and wrongdoer can not be heard to argue or say that the train was too h.eavy, or imperfectly manned, or that the machinery was defective.” It therefore becomes important for us to determine the exact' status of appellee so far as the railway company was concerned at the time and place of the accident. It is insisted that his employment as train dispatcher and telegraph operator conferred upon him the right to travel through appellant’s switch yard when necessary to visit the closet, and that he was exercising this right at the time he stepped between the cars, and that when he did so his position was one of perfect safety, and only became unsafe by the negligence of appellant’s employes’in Tuning cars on the track on which he was standing, at a high and dángerous rate of speed by means of “running a switch.” In passing upon this question as to whether the employment of a servant by a railway company in one capacity affected his relations to the company when acting in an entirely different capacity, this court said in the case of Railway Co. v. Powell, 17 Ky. Law Rep., 1051 (33 S. W., 629): “The fact that a person holds the office of station agent in a railroad company does not' give him authority to run hand cars over the company’s road, and he can not invest any one else with it; so that, in the absence of authority to run a hand car from some officer of the company who had the power to grant it, both the appellee in this action and a station agent of the appellant were trespassers on appellant’s track while running thereon.” In that case a station agent and others were run down, by a train' while on a hand car placed on the track by the station agent for the purpose of going to a neighboring town to get the keys of the station of which he was in charge as agent, and the -appellee in that case had taken passage on the hand car to assist the agent in its operation at his instance. In this case appellee had no other duties to discharge than to receive and dispatch telegrams at his place in the telegraph office; no duty to the company called him to its yard; and the fact that he had the right to cross the tracks at one place to go .to the closet did not give him the right to cross where he was injured, or to use the track as a place to urinate, and did not impose upon the servants of appellant in charge of the switch train the duty to keep a lookout for him at that point. The cars between which he was standing were coupled, and there was no reason to expect his presence at that place, and there is no testimony which tends in the slightest degree to show that any servant of the company knew he was there. He knew, from ■ long experience, that the switch opening from this track to the lead track could be opened, as he testified, in a second, and was likely to be so opened at any moment. Both ordinary prudence and the rules of the company required ■ that he should look after and be responsible for his own safety. It seems to us from the undisputed facts of this case that, as appellee was not in his place of business, or in the discharge of any duty imposed upon him by his employment, the appellant company owed him no duty except .to avoid injurying him after it had discovered his perilous position. Even if it be admitted that there was negligence on the part of the employes of the company in running cars upon the switch, the contributory negligence of appellee was so great as to preclude a recovery. The mere fact that it was possible for the trainmen to see a part of his body which was not concealed was not sufficient to charge them with notice of his perilous position, when there was no reason to expect his presence.

We are of the opinion that the motion of appellant for a peremptory instruction should have prevailed. The judgment is therefore reversed, and cause remanded for proceedings consistent with this opinion.

Response to petition by appellee for rehearing:

Counsel for appellee insist in the petition for rehearing , that the evidence does not show the company had provided a cinder walk for its employes to use in going to and from the water-closet, and that appellee was authorized to cross the yard as he did. The opinion does not rest finally on the existence of such a walk. The company had provided! a water-closet. Cars standing on a side track were not placed there for this purpose, and appellee’s use of the cars instead of the water-closet was unwarranted. Appellant’s servants in charge of the train were not required to anticipate such use of the cars. It was gross negligence in appellee to stand between the cars for this purpose, and, there being no proof ihat his danger was perceived by those in charge of the train before the injury or in time to avoid it, a peremptory instruction should have been given to the jury to find for the defendant. A railway yard is necessarily a dangerous place, and one who goes between standing cars in such a yard for purposes of his own takes the chances of injury.

Petition overruled.  