Louisville & N.R. Co. v. Asher's Adm'r

• Decision Date: 27 November 1917
• Citation: 178 Ky. 67,198 S.W. 548
• Parties: LOUISVILLE & N. R. CO. v. ASHER'S ADM'R.
• Court: Kentucky Court of Appeals

198 S.W. 548

178 Ky. 67

LOUISVILLE & N. R. CO. v. ASHER'S ADM'R.

Court of Appeals of Kentucky.

November 27, 1917

Appeal from Circuit Court, Laurel County.

Action by Robert Asher's administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George G. Brock and H. J. Johnson, both of London, and Benjamin D Warfield, of Louisville, for appellant.

Brock &amp Brock, of Harlan, and Sam C. Hardin, of London, for appellee.

CARROLL J.

While employed as a section hand and working with a gang of men for the appellant company in Kenton county, Robert Asher was struck and killed by a passenger train of the company, and in this action under the federal Employers' Liability Act by his administrator to recover damages for his death, there was a judgment against the company for $2,000, and it appeals.

The evidence shows that Robert Asher, who was an industrious young man of good habits, 19 years old, had been working for the railroad company as a section hand for several months in each year for 2 or 3 years; that on each pay day he sent to his mother, who was old and dependent, a reasonable part of his wages to help her.

The facts surrounding his death are substantially as follows: At the place he was killed, and for some miles on either side thereof, the railroad company had a double line of main track. One of these tracks was called the north-bound track on which all trains going north habitually ran, and the other track was called the south-bound track, on which all trains going south habitually ran. On the day Robert Asher was struck and killed, the crew of section men with which he was working were engaged at a place where there was a sharp curve in removing some dirt that had fallen from an embankment on the south-bound track. While they were so at work the foreman directed Asher to go north on the tracks a distance of 100 yards or more to a pile of lumber and get a plank that was needed in connection with the work, and Asher, pursuant to the orders of his foreman, went to the pile of lumber, got the plank, and was walking south on the north-bound track to where the men were, carrying the plank on his shoulder. He had walked only a short distance from the lumber pile when a south-bound passenger train, running on time and on the north-bound track, at a speed of about 45 miles an hour, struck and killed him. No notice or warning of any kind had been given to the foreman of the section crew or any of the men that south-bound trains would use the north-bound track, and there is evidence that about half an hour before Asher was killed a train passed this place going south on the south-bound track, while no south-bound trains except the one that killed him had used the north-bound track, and also evidence that the section foreman had sent a flagman north of this landslide, before the arrival of this fast passenger train that killed Asher, to warn this train to use caution in running by this place on the south-bound track, as he supposed this train would run on this track. The engineer of the train that killed Asher testified that he had received orders at a station some miles north of this place to use the north-bound track in going south on account of this landslide; that a sharp curve in the track prevented him from seeing Asher until he was within a few feet of him; that when he did discover the presence of Asher on the track, he sounded the alarm whistle and used every means in his power to stop the train before striking him, but could not do so.

On this evidence the only negligence, if any, of which the company was guilty consisted in its running a south-bound train at a high rate of speed, at a place where these men were working, on a track that had been set apart for and was used exclusively by north-bound trains, without giving warning or notice to the section men engaged in removing the landslide of the fact that on this day this fast south-bound passenger train would use the north-bound in place of the south-bound track; as the evidence makes it plain that the death of Robert Asher was caused by changing this train from the south-bound track on which it was usually run to the north-bound track without giving the section men any notice of the change, or by the failure of the engineer to reduce the speed of the train and proceed with caution at the place where the men were at work.

At this point we may stop to say that there seems to have been some difficulty in making up a correct bill of evidence, and consequently it does not clearly appear how long these men had been working at this landslide or what the flagman who was sent out by the foreman did. But there is enough in the evidence to show (1) that there was a landslide on this curve that obstructed, at least to some extent, the use of the south-bound track; (2) that a train going south used the south-bound track about half an hour before Robert Asher was killed; (3) that the railroad company knew of the landslide on this curve and that the section men were engaged in removing it; (4) that this train that killed Asher was the only south-bound train that had used this north-bound track; (5) that if the foreman of the section crew or Robert Asher had known that this south-bound train was going to use the north-bound track, or if the engineer had reduced at this place the speed of his train and proceeded with caution, Asher would not have been struck or killed; (7) that Asher heard the train some time before it struck him, and in ample time to have stepped from the track to a place of safety, but under the belief that the train he heard coming was on the south-bound track, he felt entirely safe in remaining on the north-bound track.

On these facts it is earnestly insisted by counsel for the railroad company that there should have been a directed verdict in its favor, because, as it is argued, the railroad company had the right at any time to change any of its trains from one track to the other, and to run them without any reduction in speed, and without giving notice of the change to section men who must themselves look out for and keep out of the way of passing trains, and this being so, the death of Asher was due to his negligence in remaining on the north-bound track after he heard the train coming and when he had ample time to step from the track to a place of safety.

On the other hand, it is the contention of counsel for Asher that under the facts as we have stated them the railroad company was under a duty to have given notice to this section crew of the fact that it would on this day change its usual course of traffic and run its south-bound trains on the north-bound track, or to have notified the engineer in charge of this train to reduce the speed of his train in approaching this place and proceed with caution, and that if either of these courses had been pursued, Asher would not have been killed.

In Coleman's Adm'r v. Pittsburg, etc., Ry. Co., 139 Ky. 559, 63 S.W. 39, 23 Ky. Law Rep. 401; Conniff v Louisville, Henderson & St. L. Ry. Co., 124 Ky. 763, 99 S.W. 1154, 30 Ky. Law Rep. 982; C., N. O. & T. P. Ry. Co. v. Swann's Adm'x, 160 Ky. 458, 169 S.W. 886, L.R.A. 1915C, 27; Wickham's Adm'r v. L. & N. R. R. Co., 135 Ky. 288, 122 S.W. 154, 48 L.R.A. (N. S.) 150; L. & N. R. R. Co. v. Hunt's Adm'r et al., 142 Ky. 778, 135 S.W. 288; Blankenship's Adm'r v. Norfolk & Western Ry. Co., 147 Ky. 260, 143 S.W. 995; and C., N. O. & T. P. Ry. Co. v. Harrod's Adm'r, 132 Ky. 445, 115 S.W. 699--as well as in many other cases, we have written that a railroad company is not under a duty to...