
    Murray v. Southern Railway Co.
    (Decided October 28, 1910.)
    Appeal from Bell Circuit Court.
    Railroads — Crew Using Push Car — Injury to Trespasser on Track— Failure to Stop Car — Liability.—Where a trespasser who. was deaf, was seen walking on a railroad track ahead of a push car on which a railroad crew was conveying a load of rails at the rate of four lo six miles an -hour, the crew was not required to stop their car unless they had reason to believe that the man was unconscious of his danger.
    N. J. WELLER for appellant.
    W-M. LOW for appellee.
   Opinion of the Court by

Judge Hobson

Affirming.

George Murray on October 7,1908, was walking along the Southern Railway track from Fonde, Kentucky to Pruden, Tennessee. A section crew of the railway company shortly afterwards started down the railway toward Pruden. They had what is' called a push car, which is a truck six or eight feet long with four wheels, that run on a railway track. The truck was loaded with old ties and rails. Four or five of the section men were in charge of the push ear and the remainder of the section crew were on the hand car some forty or fifty feet behind it. When they got to a part of the track that was on a slight grade, the push car moved by its own weight, and the men got upon it. One of them had a hand stick which was used as a brake. As they were going on in this way and moving about four or six miles an hour, with the hand car coming behind them, they approached two women walking on the track, and Murray who was some twenty or forty feet ahead of the women. Some of the men cn the car began whistling, others tooting like a train, and when 'the car got in a few feet of the women, thev stepped from the track. Murray was very deaf and about the time they passed the women, the men on the car perceived that he had not heard their signals. The man with the hand stick used it as a brake to stop the car, and another jumped off and aimed to run to Murray to warn him. When the car was practically oa Murray, he turned around and grabbed some of the timbers on the car with his hands, and was dragged along by the car until it was stopped. He was considerably bruised and one of his toes was injured. He brought this suit to recover for his injuries, and at the conclusion of the evidence for him which shows the facts above stated, the court instructed the jury peremptorily to find for the defendant. This the jury did and his petition having been dismissed, he appeals.

Murray was a trespasser upon the railroad, track. The point at which he was injured was some distance from either station, and the railway men were not required to anticipate the presence of trespassers there. The cause of his being injured was his inability to hear the cries of the men on the push car. There would have been no trouble if his hearing had been good. While the men on the car knew him personally, none of them recognized him when approaching on-the push car, as he had his back to them and so they had no reason to know of his danger until he failed to step from the track as the women did. The women did not step from the track until the car was in a few feet of them, and then it was too late to stop the car before it reached Murray. It has often been held that persons in charge of cars on a railroad track have a right to presume that a trespasser seen on the track will get out of the way, and that they are not required to stop the car unless they have reason to believe that he is unconscious of his danger. The evidence here fails to show that the men on the push car which was moving only from four to six miles an hour, had any reason to anticipate danger to Murray until his actions showed that he had not heard the signals which caused the two women walking behind him to leave the track; and it was then too late for the men on the push car to avoid injury to him.

Judgment affirmed.  