26 S.W. 801 (Ky.App. 1894), Martin v. Louisville & N.R. Co.

Citation:26 S.W. 801, 95 Ky. 612
Opinion Judge:HAZELRIGG, J.
Party Name:MARTIN v. LOUISVILLE & N. R. Co. et al.
Attorney:Wm. Goebel, for appellant. J. W. Bryan, for appellee Louisville & N. R. Co. Hallam & Myers and W. H. Jackson, for other appellees.
Case Date:May 31, 1894
Court:Court of Appeals of Kentucky
 
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Page 801

26 S.W. 801 (Ky.App. 1894)

95 Ky. 612

MARTIN

v.

LOUISVILLE & N. R. Co. et al.

Court of Appeals of Kentucky.

May 31, 1894

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by R. N. Martin, administrator of the estate of James Smart, against the Louisville & Nashville Railroad Company and others for wrongfully causing the death of his intestate. From a judgment for defendants, plaintiff appeals. Affirmed as to the Louisville & Nashville road, and as to all other defendants reversed.

Wm. Goebel, for appellant.

J. W. Bryan, for appellee Louisville & N. R. Co.

Hallam & Myers and W. H. Jackson, for other appellees.

HAZELRIGG, J.

The appellant's intestate, James Smart, was fatally injured while in the discharge of his duties as switchman in the yard of the appellee the Louisville & Nashville Railroad Company at Central Covington. By his petition the appellant seeks to recover damages for the death of Smart because of the gross and wanton negligence of all of the appellees. By separate answers the material averments of the petition were denied, and contributory negligence on the part of Smart pleaded. Upon the conclusion of the plaintiff's testimony the court peremptorily instructed the jury to find for the appellees, and this appeal questions the correctness of that instruction. The proof conduces to show that on the night of September 14, 1892, Smart, as switchman in the service of the Louisville & Nashville road, was engaged, with other employes of that road, in making up trains-switching, etc.-in the company's yard, and had made a coupling on track No. 2 of the Louisville & Nashville as shown in the following drawing:

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He then signaled with his lantern to the engineer in charge to move forward, and immediately climbed on a ladder on the side of the moving box car, to ride to a point further north, where other work awaited the crew. At a few minutes before this-not

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exceeding 10-the appellee Robinson, in charge of a Chesapeake & Ohio train, which had been loaded with freight in Cincinnati, to be delivered to the Louisville & Nashville people in their Covington yard, brought some 25 cars into the yard, and "kicked" them in on track No. 1, which, though in the Louisville & Nashville yard, was reserved and kept clear for the use of the Chesapeake & Ohio road. Robinson...

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