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NICHOLS'S ADMR.

V.

LOUISVILLE & NASHVILLE R. Co.

(Kentucky Supreme Court, Jan. 10, 1888.)

Trespasser on Track - Deaf Mute - Liability for Death. If the engineer, on observing a person on the track at a place where he has no right to be, rings the bell and blows the whistle, so that any ordinary person must be aware of the approach of the train, he has a right to expect the trespasser to leave the track; and the company will not be liable for his death, even though the engineer when he first saw him had time to stop the train, and the trespasser was a deaf mute.

APPEAL from Circuit Court, Nelson County.

Action against the Louisville & Nashville Railroad Company, brought by the administrator of Thomas Nichols to recover damages for the death of the intestate.

The opinion states the facts.

George S. Fulton for appellant.
William Johnson for appellee.

Facts.

PRYOR, C. J.-The appellant's intestate was run over and killed by a freight-train of the appellee, and it is claimed that it was caused by the wilful neglect of the employees on the train. The intestate was a deaf mute, and walking on appellee's road, about four hundred yards from Samuel's depot, with his back to the approaching train. The regular signal of blowing the whistle and ringing the bell was made as the train approached the depot, and one having the sense of hearing could and must have known that a train was approaching. It was moving at the rate of twelve or fourteen miles an hour; and another person, being on the road between the depot and where the unfortunate man was killed, stepped off the track as the train approached, but the deceased paid no attention to it whatThe engineer, as he neared the man, called to him to leave the track, and blew the whistle for down brakes; but the car was then so near as to render it impossible to check its progress so as to save the life of the deceased.

ever.

That the engineer doubtless saw him, or could have seen him, in time to stop the train, is manifest; but the deceased was on the track of the road where there was no crossing, and where he had no right to be, with the ground allowed. level on each side of the track, so that he might have stepped off without the least trouble; and under such circum

No recovery

stances the engineer had the right to presume that he would abandon the track of the road for his own security. Any man with his senses about him would have left the track; in fact, there was the highest degree of neglect on the part of the deaf mute in going upon the railroad track where trains were constantly passing, and using it as a foot-path for his own convenience. His death was the result of his own folly, and the court below acted properly in giving the peremptory instruction. Judgment affirmed.

Trespassers on Track. See post, Kennedy v. Denver, S. P. & P. R. Co., and note; Guenther v. St. Louis, I. M. & S. R. Co., and note.

Injury to Deaf Mute.- It is well established that negligence is not to be imputed to persons bereft of their senses, such as the deaf or the blind, on account of their failure to use senses which they do not possess; yet if such a person, knowing of his infirmity, places himself in a position in which danger is probable, without means on his part to avoid it, such act will prevent a recovery in case of injury. See Centralia v. Krouse, 64 Ill. 19; Illinois C. R. Co. v. Buckner, 28 Ill. 299; Winn v. Lowell, 83 Mass. (1 Allen) 177; Zimmerman v. Hannibal & St. J. R. Co., 72 Mo. 168; s. c., 2 Am. & Eng. R. R. Cas. 191; Sleeper v. Sanborn, 52 N. H. 244; Davenport v. Ruckman, 37 N. Y. 568; Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; Ormsbee v. Boston, etc., R. Co., 14 R. I. 102.

Partial Deafness will not excuse a person from the full measure of care which prudent persons partially deaf, conscious of their infirmity, usually take for their safety (Cleveland, C. & C. R. Co. v. Terry, 8. Ohio St. 570); yet such an infirmity in a person injured, though unknown to the servants of the railroad company, is a circumstance so connected with the infliction and receipt of the injury, that it cannot, in the progress of the trial, be rightfully excluded from the jury; but the court should see that such circumstance is properly used by the party giving it in evidence. Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570. The Supreme Court of Missouri, however, say, in the case of Purl v. St. Louis, K. C. & N. R. Co., 72 Mo. 168, 172; s. c., 6 Am. & Eng. R. R. Cas. 27, that "the case is not altered, nor does it become more favorable to the plaintiff, by reason of his deafness. Such an affliction, so far from excusing one who might have seen the train, should rather add a spur to his vigilance, and prompt him to employ his other faculties so as to compensate, as far as possible, for the lacking one:" citing I Thompson on Neg. 430; Shrem. & Red. on Neg. sect. 488.

Deaf Person walking along Track. It is said in Cogswell v. Oregon & C. R. Co., 6 Oreg. 417, that it is gross negligence for one who is deaf to walk laterally along the track of a railroad, where trains are liable to pass. And it is well settled that the servants of a railroad company in charge of a train have a right to presume that a person walking upon the track is of sound mind and good hearing (Finlayson v. Chicago, B. & Q. R. Co., 1 Dill. C. C. 579, 582), and to presume that he will leave the track at the last moment, at least, before being struck;" and it may be regarded as established law that those in charge of the train have a right to act upon such presumption till it might be too late to avoid contact. See Indianapolis & V. R. Co. v. McClaren, 62 Ind. 566, 572; Citizens' R. Co. v. Carey, 56 İnd. 396; Terre Haute R. Co. v. Graham, 46 Ind. 239; Bellefontaine R. Co. v. Hunter, 33 Ind. 335; Lafayette R. Co. v. Huffman, 28 Ind. 287; Lafayette R. Co. v. Adams, 26 Ind. 76; Mullhessin v. Delaware R. Co., 81 Pa. St. 366.

Partial deafness will not increase the responsibility of a railroad company,

or in any way affect the care necessary to be used by them, where the servants of the company had no notice or knowledge of such infirmity. Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 572. Thus, in Laicher v. New Orleans, J. & G. N. R. Co., 28 La. An. 320, the plaintiff's son, who was to some extent deaf, was walking on the railroad track outside of the rails, stepping from one cross-tie to another, when the train was approaching him from behind; he was struck with great violence, and severely injured. The court held, that, conceding that there was a want of proper prudence and care on the part of the employees of the company in giving the usual signals of the approach of the train, yet the negligence on the part of the young man in walking along the cross-ties, and taking no care to look back or get off the track, was such negligence as to preclude recovery.

But if a person upon the track is known to the servants of the company in charge of the train to be a deaf and dumb man, then the company will be held to a greater degree of care. See Finlayson v. Chicago, B. & Q. R. Co., I Dill. C. C. 579, 582. International & Great N. R. Co. v. Smith, 62 Tex. 185; s. c., 19 Am. & Eng. R. R. Cas. 21.

Deaf Man crossing Track. A deaf person attempting to cross a railroad track is held to a greater degree of care and caution than one in full possession of his senses; because his infirmity renders him less able to detect the approach of a train, and less able to protect himself from injury. Thus, it has been held to be negligence for a deaf person to attempt to drive an unmanageable horse across a railroad track when a train is approaching; that it is his duty to keep a lookout, and avoid danger. In such a case it is no excuse that the horse rushed up the track near the crossing, or was driven there to avoid the engine. Illinois C. R. Co. v. Buckner, 28 Ill. 299. And in Purl v. St. Louis, K. C. & N. R. Co., 72 Mo. 168; s. c., 6 Am. & Eng. R. R. Cas. 27, the plaintiff, a deaf man, being about to cross the railroad track in a buggy, saw the smoke of what he took to be a moving train east of him, but attempted to cross without looking for the train, and was struck by the locomotive; the court held that the accident was the result of his own negligence, and that the railroad company was not liable. See, for the Missouri rule in such case, Henze v. St. Louis K. C. & N. R. Co., 71 Mo. 636; Moody v. Pacific R. Co., 68 Mo. 472; Fletcher v. Atlantic & P. R. Co., 64 Mo. 484; Harlan v. St. Louis, K. C. & N. R. Co., 64 Mo. 480. See also Chicago & N. E. R. Co. v. Miller, 46 Mich. 532; s. c., 6 Am. & Eng. R. R. Cas. 89; Johnson v. Louisville & N. R. Co., 13 Am. & Eng. R. R. Cas. 623.

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Crossing Track with Muffled Ears. It has been held that a person crossing a railroad track who could have seen the cars approach, had he been looking, but who turned his back in the direction from which the train was coming, and had his ears so bandaged that he could not hear, is guilty of such negligence as will prevent his recovery for injuries resulting from colliding with the train, unless he can prove a greater degree of negligence on the part of the railroad company. Chicago & R. I. R. Co. v. Still, 18 Ill. 499.

KENNEDY

ข.

DENVER, SOUTH PARK, & PACIFIC R. R. Co.

(Colorado Supreme Court.)

Trespasser on Track Deafness Notice to Conductor. In an action against a railroad company to recover for personal injuries sustained by plaintiff, it appeared that the train struck him from behind; that he knew nothing of its presence until struck; that his hearing was defective, but he was not aware of the extent of the defect; and that the whistle was blown. He offered testimony that his son, who was aboard the train, had informed the conductor that plaintiff was travelling along the track, and was deaf or partially so; but the court excluded the evidence, and allowed a nonsuit. On appeal, held, that the plaintiff's own evidence established contributory negligence on his part; that, had the testimony been admitted, a prima facie case of gross negligence or wantonness, requiring a submission to the jury, would not have been made; and that there was no ground for reversal. Beck, C. J., dissents.

ERROR in District Court, Jefferson County.

On the 27th of January, 1883, plaintiff, George O. Kennedy, while walking in the day-time upon defendant's railroad track, was struck by the locomotive attached to the freight-train, and seriously injured. The train approached him from behind, and he knew nothing of its presence until struck. He was aware, that his hearing was defective, but was not aware of the extent of such defect. In going upon the track at Dawson's switch station, he looked for trains, but made no inquiry concerning them. He had previously passed over the same track, and had always recognized without difficulty the presence of trains before. they came in sight. The view was unobstructed for a distance of nine hundred feet back of the spot where plaintiff was injured. Just prior to the accident the whistle blew six or seven times, quick, short blasts, winding up with a long, steady blow. Shortly afterwards the engine and caboose returned to the station, bringing plaintiff. The conductor went to one Rutherford, who lived near by, for aid, and remarked that he had caught that man; promising to send a physician that evening. The vacuum airbrake was in use on the train, and the train could have been stopped in a distance of from 125 to 150 feet. This action was brought to recover damages for the injuries thus inflicted.

At the trial, the court below rejected the following evidence, offered to be proved by the plaintiff's son, and also, substantially, by one other witness. That he (the son) went to the conductor of the train the day of the injury, and told the conductor that his

father, the plaintiff, had, five or ten minutes previously, started to walk along defendant's track to Dome Rock; also that his father was deaf, or partially so, and that he asked the conductor, on account of such deafness, to look out for him, and not run over him; that this was done in the presence and hearing of the two brakemen of said train and of one Rutherford; and that the conductor there and then replied, that, if the plaintiff was deaf, he had no business on the track, and would get killed or run over. The witness was permitted to state, that, after the conversation alluded to, the train started up, and the conductor went into the caboose. The following rules of the defendant company for its employees were received in evidence: "Rule 37. In case where there is any room to doubt as to the safety of proceeding from any cause, adopt the safe course." "Rule 39. The conductor will have charge of the train and of all persons employed on it, and is responsible for its movements while on the road, except when his directions conflict with these regulations, or involve any risk or hazard, in either of which cases the engineer will be held alike accountable." At the conclusion of plaintiff's evidence, defendant moved for a nonsuit, which the court allowed, and to review the final judgment entered thereon, the present writ of error was sued out.

A. H. De France and S. E. Browne for plaintiff in error.
Teller & Orahood for defendant in error.

PER CURIAM. The rulings challenged by the first three assign ments of error were correct, and the assignments will not be discussed.

Plaintiff's

negligence bars recovery.

Conceding that the testimony concerning notice to the conductor, and the latter's remark, should have been received in evidence, and that the court's action in excluding the same was error, we still think there is not sufficient ground for reversal. Plaintiff was a man of mature years, of sound mind, and perfect eyesight. He was in the possession of unimpaired physical activity and strength. His only defect was that of being partially deaf. Of this defect he was aware, though perhaps he did not know its extent. Without inquiry about defendant's trains, he voluntarily went upon its track, and was walking thereon when the accident occurred. It was in the day-time, and the road-bed for nine hundred feet behind him was in full view. Prior to the accident, the whistle was blown six or seven times in short, sharp blasts, excepting the last, which was a prolonged blast. Plaintiff's own evidence clearly establishes contributory negligence on his part. Therefore, under a well-known legal principle, before he could recover, it became necessary for him to show gross negligence or wanton

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