Richards v. Louisville & N.R. Co.

• Decision Date: 15 February 1899
• Citation: 49 S.W. 419
• Parties: RICHARDS v. LOUISVILLE & N. R. CO. [1]
• Court: Kentucky Court of Appeals

49 S.W. 419

RICHARDS v. LOUISVILLE & N. R. CO. ^[1]

Court of Appeals of Kentucky.

February 15, 1899

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by John Richards against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Matt O'Doherty, for appellant.

Lyttleton Cooke and O'Neal & Pryor, for appellee.

HOBSON J.

Appellant filed this suit November 7, 1893, to recover of appellee for injuries received while in its employ as brakeman. On the first trial of the case the jury failed to agree. On the second there was a verdict for plaintiff for $5,722.22 which, on motion for a new trial, was set aside by the court. On the third trial, at the conclusion of plaintiff's testimony, the court gave the jury a peremptory instruction to find for the defendant.

The first question arising on this appeal is whether the evidence offered by appellant was sufficient to take the case to the jury under the rule adopted in this state. In other jurisdictions the rule is sometimes held to be that a peremptory instruction should at all times be given where the court is of opinion that a verdict should not be sustained but in this state the rule is that, if there is any evidence to sustain a recovery, it must be submitted to the jury. This rule is so well settled that it can only be changed by legislative action. The question, therefore, is, was there any evidence here to sustain the allegations of the petition? The proof offered by appellant tended to show these facts: On January 26, 1893, appellant was front brakeman on a freight train running from Cincinnati to Louisville. When the train reached Lagrange it was late. It stopped at Buckners, a station a few miles south of Lagrange, for another freight to pass it, and so, when it left Buckners, was further behind time than before. Appellant, being on the engine with the engineer, asked the engineer where he was going. The engineer answered, "To Pewee, for No. 2," which was a fast passenger train. Appellant then said to him that he would have to make the run of his life to do that. When they got to Pewee they were on the time of the passenger train, and appellant went forward, and threw the switch, so that the train could take the side track. On this side track there was a cross-over to the main track, about 25 car lengths from the switch. This cross-over was open. The train had 39 cars in it, and so it was necessary to throw this switch, also, to get all the train in on the side track. Appellant, therefore got on the engine after throwing the first switch, and rode down on it, for the purpose of throwing the switch at the cross-over. As they went along he said to the engineer several times, that he was running too fast, and that he ought to have his train under control; but the engineer paid no attention. When they got within about 100 feet of the cross-over, appellant got down off the engine, and ran forward, and threw the switch, to prevent the train from going on the cross-over to the main track. It was the duty of the engineer, when appellant went forward to throw the switch, to stop his train, or get it under control, and to wait for a signal from appellant before coming ahead. This he did not do. Appellant, after throwing the switch, saw on the side track, a short distance beyond the switch, a car which had to be coupled to the engine, so that it could be pushed ahead until the train should all come upon the side track; and, as it was his duty to make this coupling, he started, after throwing the switch, to go to this car, but, as he did so, he stepped in a hole, which caused him to fall upon the rail, and, as the engine had come ahead without waiting for a signal, it was very near him when he fell. Realizing his danger, he tried to swing himself from the track; but, as he did so, his foot swung around, and his leg was caught under the wheel of the locomotive, and crushed about the ankle. The train was not stopped until the engine, tender, and one car and a half passed over him, drawing his leg further and further under, so that it had to be amputated above the knee. He was confined to his bed or house some five months, and appears to have suffered greatly. The evidence also tended to show that it was usual to have the space around the switches surfaced up,...