Chesapeake & O. Ry. Co. v. Reeves' Adm'r

• Citation: 11 S.W. 464
• Parties: CHESAPEAKE & O. RY. CO. v. REEVES' ADM'R.
• Decision Date: 25 April 1889
• Court: Court of Appeals of Kentucky

11 S.W. 464

CHESAPEAKE & O. RY. CO. v. REEVES' ADM'R.

Court of Appeals of Kentucky.

April 25, 1889

Appeal from circuit court, Bath county; JOHN E. COOPER, Judge.

"Not to be officially reported."

Action by John W. Reeves' administrator, against the Chesapeake & Ohio Railway Company, to recover damages for the alleged negligent killing of plaintiff's intestate by defendant's train. Judgment for plaintiff. Defendant appeals.

Breckinridge & Shelby and Gudgell & Son, for appellant.

W. J Hendrick, J. S. Hurt, J. J. Nesbitt, and C. W. Goodpaster for appellee.

PRYOR J.

An examination of this record, as the facts are now presented entitled the appellant to a peremptory instruction; but, as the case will go back for another trial, it is not necessary that we should analyze the testimony, or allude to it with more particularity than to say that the injury to the intestate of the plaintiff, resulting in his death, was caused by his own negligence, and not that of the appellant. We are not disposed to adjudge that there is such a variance between the statement of the plaintiff as to the cause of the negligence and that attempted to be proven as would have authorized a nonsuit for that reason. The negligence alleged in the petition was the failure of the employés of the company to stop the train long enough for the intestate to get off. The accident resulting in the death of the intestate was in being caught or thrown under the train in the act of leaving the car, caused, on the theory of the appellee, by the train not remaining stationary long enough to enable him to get off without injury, and if such had been the proof it would have been the direct cause of the injury.

The testimony conclusively showed that the intestate had ample time to leave the cars, and that others less able to move about or to leave the cars had no difficulty in getting on and off the train. It is true that the accident would not have happened but for the attempt of the passenger to leave the car; but if having the right to believe that the cars would remain long enough to enable him to leave the train and in the exercise of the proper diligence on his part in the attempt to get off within the usual and reasonable time that such trains stop at stations to receive and discharge passengers, and while in the act of getting off the cars they had started before the usual and reasonable time allowed passengers to leave, and was injured on account of this neglect, a recovery could be had; but the proof here shows ample time was allowed him to land, and those in charge of the train were ignorant of his imprudence in leaving the train at the time and in the manner he did, when by the exercise of the slightest care or judgment he should have known that he was exposing himself to danger. There is an entire absence of evidence that the employés saw the danger the intestate was in, or that they could have avoided the injury. The testimony of...