CUMBERLAND R. CO. v. WALTON.* (Court of Appeals of Kentucky. Oct. 22, 1915.) 1. MASTER AND SERVANT 137-PERSONS ON TRACK-DUTY OF RAILROAD COMPANY. Defendant operating a short railroad carrying coal from mines, and running a daily passenger train and whose right of way was fenced, and along whose road there was a footpath on one side and a space on the other affording room enough to walk from its blacksmith shop to its station in a small village, none, of the buildings of which were located with respect to the track so as to require its use by its inhabitants, was not within the rule that, where its employés required use of the track, or its use by the public generally with its knowledge so continued that the presence of employés or others on the track must be anticipated, it was required to entertain a lookout and give warning of its trains. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. 137.] 2. MASTER AND SERVANTS9-ACTION FOR SETTLE, J. This is an appeal from a judgment entered upon a verdict awarding the appellee, William Walton, $12,000 damages for injuries sustained by being run over by an engine and caboose operated on the track of the appellant, Cumberland Railroad Company, in its switchyard at Artemus, this state. In view of the nature and extent of the injuries sustained by appellee, the amount recovered is not unreasonable, if the recovery was authorized at all. The appellant's railroad lies wholly in Knox county, extends from Artemus, a village four miles from Barbourville, to War [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig.ren, where coal mines are located, and is S9.] 3. MASTER AND SERVANT TRACK-DUTY. 137-INJURY ON Where an employé of defendant railroad, while engaged in defendant's business found it reasonably necessary to go upon its track at a time when, and a place where, the presence of employés should have been reasonably anticipated, it was the railroad's duty to look out for him, and give him a timely warning of the approach of its train by blowing the whistle or ringing the bell. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. 137.] 4. MASTER AND SERVANT 278-TRESPASSER ON TRACK-NEGLIGENCE-EVIDENCE. In action by car repairer employed by defendant railroad for injury upon its tracks while a trespasser, evidence held to show that defendant could not have prevented the injury by the exercise of ordinary care, after discovering his peril. [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. 278.] 5. MASTER AND SERVANT 137-INJURY ON TRACK-TRESPASSER-NEGLIGENCE. As to its car repairer while a trespasser on its track, defendant railroad owed no other duty than to use ordinary care to avoid injuring him after the discovery of his peril, and, where he stepped upon the track so near an approaching engine that his presence was not discovered in time to prevent it from striking him, it was guilty of no negligence. only about eight miles in length. The principal business of the road is the transporting of coal from the mines, but in addition to its freight train, used for that purpose, it runs a passenger train, consisting of an engine and one or two old coaches, between Artemus and Warren daily. It owns no rolling stock, but leases its freight engine, coal cars, passenger engine and coaches from other railroad companies. Besides the engineers, firemen and brakemen in charge of its passenger and freight trains, it employs a small number of men, perhaps less than a dozen, in maintaining its stations and roadbed and doing other work necessary to the operation of its business. The appellee, Walton, was employed by appellant as a car repairer, and had served it in that capacity about six months prior to December 12, 1912, the day on which his injuries were received. Shortly after 6 o'clock on the morning of that day appellee went to the appellant's blacksmith shop in Artemus, where he made a fire in the forge and assisted in welding some irons. After this work was completed he was directed by Joshua Parrott, an employé of appellant and his foreman in the latter's service, to go to Warren for the purpose of making some repairs on the dwelling house of B. C. Milner, a son of the superintendent of the appellant company. It appears that he intended going to Warren on appellant's freight train, but that while he was away from the shop to get some tools to take with him, the freight engine and caboose, which had been standing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 269, 270, 273, 274, 277, 278; Dec. Dig. 137.] 6. MASTER AND SERVANT 281-INJURY ON TRACK--CONTRIBUTORY NEGLIGENCE. Evidence, in a car repairer's action against a railroad for injury on its track, held to show on the main track near the station, went to | of both appellant and appellee that there the river, about a half mile distant, to take was no necessity for such use of the track on sand and water, and when appellee return- by any person, as the path from which aped to the shop he was erroneously informed pellee stepped on the track before receiving by some one there that the freight train had his injuries extended from the blacksmith gone to Warren, which made it necessary for shop and beyond it down to the depot; that him to take the passenger train soon to leave it was of sufficient width to enable persons for Warren, to get aboard of which it was going to or from the depot up and down the necessary for him to go to the depot build- railroad track to walk in comfort and withing a hundred yards or more from the black-out danger of coming in collision with passsmith shop. It turned out, however, that the freight train had not left for Warren as appellee was informed, and that its engine and caboose, which had gone to the river, were returning on the main track to the depot when appellee left the blacksmith shop to reach the depot for the purpose of taking the passenger train. So when the latter left the blacksmith shop he entered a narrow footpath leading up to the railroad track, where it turned and ran outside of and along the track to the depot. After walking along this path and outside of the ties for a distance of 50 or 70 feet from the blacksmith shop, he left it and stepped either upon the railroad track or upon the ends of the ties outside of the rail nearest him, immediately following which act he was struck in the side or back and knocked down by the returning caboose and engine of the freight train, resulting in the injuries complained of. The ground of recovery set out in the petition is that the appellee's injuries were caused by the negligence of appellant's servants in charge of the freight engine and caboose, in failing to reduce its speed, maintain a proper lookout, and give the customary signals of its approach to the place of the accident. The answer of appellant denied the negligence charged, and pleaded contributory negligence on the part of appellee. [1] It is appellee's contention that appellant's tracks at the place of the accident were so used by its employés and others, and such use acquiesced in by appellant, as to impose upon the latter and its servants the duty of anticipating their presence thereon and of exercising ordinary care to maintain such regulation of the speed of their moving trains and such lookout and signals therefrom as would prevent injury to the persons using the track. It is the contention of appellant that it owed no lookout duty to appellee, and that his presence on the track at the time of the accident was not to be anticipated. That although he was its employé he was not at the time he was injured discharging any duty that he owed it; in brief, that he was a trespasser. Appellee and some of his witnesses testified that the railroad track at the place of the accident and between that and the depot was frequently used by appellant's servants and others. On the other hand numerous witnesses introduced by appellant testified that such use of the track was only occasional; and it is ap ing trains; that in addition to the safe walking afforded by the path mentioned, there was and is, on the other side of the main track and between it and the only switch track in appellant's depot yard, ground or space, extending from a point above the blacksmith shop down to the depot, free of obstacles, and of sufficient width to prevent contact with the train on either track, which persons, not desiring to use the path, could walk on from the blacksmith shop to the depot. The evidence was all to the effect that appellant's right of way on each side of the tracks at the place of the accident, as well as above and below it, was fenced; that there was no railroad crossing anywhere between the blacksmith shop and depot, and no residences, stores, or other buildings. In view of this situation no reason is apparent for the use of either of the railroad tracks as a walkway by appellee or other persons in passing between the blacksmith shop and depot or going up or down the railroad. It may be that in switching, coupling, or otherwise manipulating trains, the presence of some of the trainmen on the tracks at or near the place of the accident at times is necessary, but we can imagine no other cause for their use by other employés of appellant or pedestrians. According to the evidence Artemus is a small village with a population of 250 or 300, and none of its residences, shops, or buildings are located with respect to appellant's railroad tracks so as to require or authorize their use by its inhabitants. On the contrary, they appear to be connected by the usual streets or highways, which render every part of the village accessible, without the use of appellant's railroad tracks. For the foregoing reasons, we must sustain the contention of appellant that the facts of this case are not sufficient to bring it within the rule that, where its employés required use of the track, or its use by the public generally with the knowledge and acquiescence of the railroad company has so continued as that the presence of such employés, or other persons, on them at the point where so used must be anticipated by it in running its trains, it will impose upon it the consequent duty of maintaining, in approaching such place of use, a lookout and giving warning of their coming. In C. & N. O. Ry. Co. v. Nipp's Adm'x, 125 Ky. 49, 100 S. W. 246, 30 Ky. Law Rep. 1131, 385, 91 S. W. 722, 28 Ky. Law Rep. 1293,, him the right to go upon the track, and reMiller's Adm'r v. I. C. R. Co., 118 S. W. quired its servants in charge of the engine 348, and a number of other cases, in which and caboose, not only to anticipate his presit was sought to have the above rule applied, ence on the track, but also to use such reait was held that it should be confined to sonable precautions in operating the engine cities and thickly populated communities, and caboose as would have prevented his inand not extended to rural communities or juries. The duty required of him by the foresparsely settled places, although the track at man was to repair a house at Warren, owned those places may be used by a large number or occupied by a son of the superintendent of persons. On the other hand, there are of appellant's road. It is not apparent from numerous later cases, such as C. & U. Ry. the evidence that appellant was under any Co. v. Warnock's Adm'r, 150 Ky. 75, 150 S. W. duty to make the repairs referred to. It was 29; Corder's Adm'r v. C., N. O. & T. P. Ry. not shown to be the owner of the house, or Co., 155 Ky. 536, 159 S. W. 1144; and C. & that it sustained to the occupant any conO. R. Co. v. Dawson's Adm'r, 159 Ky. 296, tractual relation that compelled it to send 167 S. W. 125, in which it was held that the one of its employés to repair it. The servquestion whether the party injured is a mere ice required of appellee under his employtrespasser or licensee must depend, not on ment by appellant was that of repairing cars, the fact that the accident happened in a city and not the doing of work for others, with or incorporated town, but on the number of which appellant was in no wise concerned. persons using the track at the place of the If, therefore, the work he was directed to accident, and, further, that the question do for the son of the superintendent was not should be left to the decision of the jury un- such as appertained to his employment nor der a proper instruction from the court. within the apparent scope thereof, it cannot Thus, in C. & O. Ry. Co. v. Dawson's Adm'r, be said that its performance was a duty resupra, it is in the opinion said: quired of him by appellant. "In this case plaintiff shows that there were about 350 persons living in the town of Garrison. There was considerable travel between that point and the ferry landing. Persons going to and from the ferry landing to the depot used defendant's main track between Garrison lane and the depot. The track was used daily by about 100 persons. The decedent was between 15 and 25 feet from the station platform, and from 75 to 90 feet from the depot building. Under these circumstances, it was proper to submit to the jury the question whether or not decedent was a trespasser to whom no duty was owing until after her peril was discovered, or a licensee to whom the defendant owed the duty of keeping a lookout and giving timely warning of the approach of the train. In the instant case the evidence fails to show such use of appellant's track as imposed upon it, while operating its train, the duty of anticipating the presence of its employés or other persons on it at the place of the accident, or of maintaining a lookout for them and giving warning of the movements of the train. If, however, the evidence had been stronger, and sufficient to prove such use of the track as was shown in C. & O. R. Co. v. Dawson's Adm'r, supra, the jury should have been allowed to determine whether the facts authorized the application of the rule in question. This the trial court failed to do. In none of the instructions was that question submitted to the jury. On the contrary, instruction No. 1, erroneously assumed the applicability of the rule and the existence of the facts necessary to authorize its application. As the instructions were objected to by appellant, this error, even in the absence of the graver one committed by the court, to be later indicated, would, of itself, have compelled the reversal of the judgment. [2, 3] It is, however, insisted for appellee that he was, when injured, in the performance of a duty required of him by appellant's In order to recover on the contention he actually makes, appellee must have shown that he was engaged in appellant's business, and that it was reasonably necessary for him to go upon the railroad track at a time and place, when and where the presence of employés on the track should have been reasonably anticipated. Appellant would then have owed him the duty of looking out for him, and giving him a timely warning of the coming of the engine and caboose by blowing the whistle or ringing the bell. C., N. O. & T. P. Ry. Co. v. Troxell, 143 Ky. 770, 137 S. W. 543. The facts, however, do not sustain his contention, but give him a different attitude, and compel the conclusion that his status at the time of receiving his injuries was that of a mere trespasser. If a trespasser, the only other question to be determined is, Could appellant's servants in charge of the engine and caboose, after discovering his peril, have prevented his injuries by the exercise of ordinary care? [4] As to this question there is little conflict in the evidence. Appellee's own testimony throws scarcely any light on the matter, for he admitted he did not know whether he was between the rails of the track or walking on the ends of the ties when struck by the caboose and engine. He professed to know when he stepped from the path onto the track, but not where he did so, nor how far he walked on the track or end of the ties before being knocked down by the caboose. He admitted he was rendered unconscious by the collision with the caboose, and that he did not regain consciousness until about three weeks later. While numerous witnesses testified in the case, only two of them claim to have seen the accident. These were James Parrott, fireman on the engine pushing the Rice, flagman on the passenger train then, That is to say, the evidence conclusively standing on the switch track. Parrott said shows an absolute failure upon his part to he did not see appellee, although keeping a take any precaution for his own safety. lookout, until "something like a thought be- Thus far we have considered the case without fore the caboose struck him," and that the reference to the question whether the engine latter was then six or eight feet from the pushing the caboose in approaching the place caboose, and walking on the ends of the ties of the accident gave the usual signals, or outside the rail; that he (Parrott) imme- whether those in charge thereof maintained diately notified the engineer to stop the en- a lookout. In point of fact, the evidence congine, which was done as quickly as possible, clusively shows that the engine bell was conbut not until after appellee was struck and stantly ringing from the time the engine knocked down. Rice, who was standing be- and caboose came in sight of the blacksmith tween appellee and the depot, said he saw shop until the accident occurred, and fairly him come out of the blacksmith shop and apparent from the evidence that the engineer walk toward the depot down the path a short and fireman were also maintaining a lookout distance parallel with the railroad track, ahead of them on the track. Although in and that he then stepped on the track in leaving the blacksmith shop appellee was facfront of the approaching caboose, being push- ing in the direction from which the engine ed by the engine, after doing which he walk- and caboose were approaching, according to ed but two or three steps before being over- his own testimony he never looked that way taken and knocked down by the caboose; at all to see whether there was a train on that, upon seeing appellee's danger, he whis at all to see whether there was a train on the track. After getting upon the path paraltled to him, just before the caboose reached leling the track, he turned in the direction him, or as it did so, but failed to get his at- of the depot without taking a look in the tention. The facts furnished by the testi- direction from which the engine and caboose mony of these two witnesses, who alone were in a position to see the occurrence and know came. After continuing in the path for some the circumstances, and whose statements distance, and when the caboose had almost are uncontradicted, demonstrate that the in- reached him, he then stepped upon the track juries sustained by appellee could not have or the end of the ties without heeding the been prevented after his presence on the ringing of the engine bell or looking in that track became known to those in charge of direction to see if the track was clear. It is the engine and caboose. true he testified that the passenger train was then standing on the switch track but a short distance from him, and that the escape of steam from its engine prevented him from hearing the coming of the caboose and engine of the freight train, but this, in view of the fact that in stepping upon the track he became a trespasser to whom no lookout duty was owing by those in charge of the engine and caboose, instead of excusing him from using ordinary care to protect himself from dan the need of its exercise. As said in Bauer v. I. C. R. Co., 156 Ky. 187, 160 S. W. 933: [5] In view of the foregoing facts it is not material whether the enginee and caboose gave the statutory, or any, signals of its approach; nor does the speed at which they were running enter into the case. It appears, however, that its speed was six or eight miles per hour and that the bell was constantly sounded. Appellant's servants in charge thereof owed appellee no other duty than to use ordinary care to avoid injuring him after the discovery of his peril; and, as he step-ger, should have made him more mindful of ped upon the track at a point so near the approaching engine and caboose, his presence thereon was not discovered by them in time to prevent the train from striking him, they were not guilty of negligence, and on this ground alone the jury should have been peremptorily instructed to find for appellant, as requested by its counsel. Gregory v. L. & N. R. R. Co., 79 S. W. 238, 25 Ky. Law Rep. 1986; C. & O. Ry. Co. v. See's Adm'r, 79 S. W. 252, 25 Ky. Law Rep. 1995; Brown v. L. & N. R. Co., 97 Ky. 228, 30 S. W. 639, 17 Ky. Law Rep. 145; C. & O. Ry. Co. v. Perkins, 47 S. W. 259, 20 Ky. Law Rep. 608; L. & N. R. Co. v. Redmon's Adm'r, 122 Ky. 385, 91 S. W. 722, 28 Ky. Law Rep. 1293; Helton's Adm'r v. C. & O. R. Co., 157 Ky. 380, 163 S. W. 224. * * * may "The rule in this state is that contributory negligence bars a recovery unless, notwithstanding the negligence of the person injured, and after his peril is perceived, ** ** the defendant's servants could, by ordinary care, avoid injury to him. The traveler who by his own negligence puts himself in peril on a railroad track cannot recover, unless the danger be avoided by proper care on the part of the railroad after it has notice, actual or constructive, of the danger in which his negligence has ning too fast and the deceased was by negliplaced him. If the train was by negligence rungence on the track, the injury would be due to the concurrent negligence of both the parties, and in such a case he cannot recover for the negligence of the railroad company, because but for his own negligence he would not have been hurt; and when both parties have been negligent the law will not measure comparisons be[6] It is also patent that the peremptory on the ground that its negligence was greater tween them, and make the defendant responsible instruction was authorized upon the further than his. * * * This would be to lay down ground, that, according to the evidence, ap- the rule of comparative negligence, and to hold pellee was himself guilty of negligence which that, although the intestate was negligent, there could be a recovery if the negligence of the so contributed to his injuries that but for defendant, and not his negligence, was the prox declared in some jurisdictions, but it has never 6. WITNESSES been followed in this state." EVIDENCE. The facts bring this case clearly within the rule announced in L. & N. R. Co. v. Trower's Adm'r, 131 Ky. 589, 115 S. W. 719, 20 L. R. A. (N. S.) 380; Helm v. L. & N. R. Co., 17 Ky. Law Rep. 1004, 33 S. W. 396; I. C. R. R. Co. v. Willis' Adm'r, 123 Ky. 636, 97 S. W. 21, 29 Ky. Law Rep. 1187; Craddock v. L. & N. R. Co., 13 Ky. Law Rep. 18, 16 S. W. 125; Helton's Adm'r v. C. & O. R. Co., 157 Ky. 380, 163 S. W. 224. For the reasons indicated the judgment is reversed and cause remanded for a new trial consistent with the opinion. Where the defendant in an action for slander said that plaintiff robbed his sister-in-law, the word "rob" is susceptible of two meanings, one of which is actionable and one is not, and in the absence of other language determining the meaning the question is for the jury as to what sense the word carried. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. 123.] 3. LIBEL AND SLANDER 123-INSTRUCTIONS Where defendant said that plaintiff robbed -DEFINITION OF TERMS. his sister-in-law, and in an action of slander therefor the court instructed that, if defendant thereby meant that plaintiff had committed the crime of robbery, the verdict should be for plaintiff, the refusal to define the crime of robbery was error, since the defendant was entitled to have the jury understand the crime. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. 123.] 280-IMPEACHMENT-BIAS tiff's witness was asked, "You were a follower In an action for slander, where the plainof [the plaintiff] in that campaign?" on objection the question was excluded. Held that, while it was competent to show the state of feeling between a witness and the plaintiff, the question as put was improper. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 988, 990-993; Dec. Dig. 280.] 7. LIBEL AND SLANDER 100 JUSTIFICA TION. In an action for slander, in which the defendant does not seek to show justification for the words used, plaintiff may show as part of his main case in aggravation of damages that he is of good character and that his reputation for honesty in the community is good. [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 246-256, 258-272, 291, 322, 323; Dec. Dig. 100.] Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division. Action by J. A. Bowles against William Deitchman. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Clem W. Huggins, Robert J. Hagan, and L. D. Greene, all of Louisville, for appellant. Robert L. Page, of Louisville, for appellee. HANNAH, J. J. A. Bowles sued William Deitchman in the Jefferson circuit court for slander. He recovered a judgment in the sum of $500; and the defendant appeals. This case is the aftermath of a hotly contested election, in the course of which appellant in a campaign speech made remarks to which appellee took exception. The language which plaintiff complained of was as follows: "This man is great booster of Highland Park. He robbed his sister-in-law of three hundred dollars, and caused her to have to send her children to an orphans' home." [1] The word "rob" does not necessarily carry with it the imputation of crime. Given its technical meaning as used in law, it, of course, imports the commission of a felony; but colloquially it is quite often used when no imputation of crime is intended, and, where used in its colloquial sense, it is not actionable per se. [2] If a consideration of all the language used at the time the word "rob" was used demonstrates that it was used only in its colloquial sense, it will be held nonactionable per se as a matter of law. Macauley v. Elrod, 27 S. W. 867, 16 Ky. Law Rep. 291. But, in the absence of accompanying lan [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig.guage determining the quality of expressions 500.] 5. LIBEL AND SLANDER DAMAGES. 63-MITIGATION OF In an action for slander, evidence that the words were used in the course of a political campaign and in retaliation for words used by the plaintiff against the defendant was admissible in mitigation of damages. having two interpretations, one actionable, and the other nonactionable, it is for the jury to determine in which sense the language was spoken. Beams v. Beams, 138 Ky. '818, 129 S. W. 298; Welsh v. Eakle, 7 J. J. Marsh. 424; Dedway v. Powell, 4 Bush, [Ed. Note.-For other cases, see Libel and 77, 96 Am. Dec. 283; Winstead v. Trice, 5 Slander, Cent. Dig. §§ 164, 318; Dec. Dig. Ky. Law Rep. 863; 12 Ky. Opinions, 590. 63.] [3] The court instructed the jury that, if |