Kentucky Cent. R. Co. v. Ackley

• Decision Date: 24 May 1888
• Citation: 87 Ky. 278,8 S.W. 691
• Parties: KENTUCKY CENT. R. CO. v. ACKLEY.
• Court: Kentucky Court of Appeals

8 S.W. 691

87 Ky. 278

KENTUCKY CENT. R. CO. v. ACKLEY.

Court of Appeals of Kentucky.

May 24, 1888

Appeal from circuit court, Pendleton county.

Action by Isaac Ackley against the Kentucky Central Railroad Company. Verdict and judgment for plaintiff, and defendant appealed.

L. T Applegate and George C. Lockhart, for appellant.

Cowan &amp Farris, John H. Fryer, and J. W. Peck, for appellee.

LEWIS J.

Appellee brought this action to recover damages for personal injuries resulting from a collision of a passenger train of cars, upon which he was acting as engineer, with a freight train; both being, at the time, operated upon appellant's road. The collision, which it is alleged in the petition was caused by the willful negligence of appellant and its servants occurred a short distance south of the end of the side track at Cataba station, but at a curve in the road where those in charge of the respective trains could not perceive the danger in time to prevent it. It appears from the evidence the passenger train was, at the time, going from Covington south, and was due at Cataba, 9:10 P. M., and at Falmouth 9:18 P. M. There is a slight difference in the testimony of the engineer and the local agent at Falmouth in regard to the precise time the freight train left that station, bound north; but we think it is satisfactorily shown it did not leave soon enough, going the allowable rate of speed, to arrive at Cataba, and get upon the side track 10 minutes, the time prescribed by the rules of the company, or any length of time, before the passenger train was due there; and as the latter train was as near on time as is generally practicable, and was entitled to the track, it is evident the collision was caused by those in charge of the freight train, which was four or five hours behind time, leaving Falmouth when a collision would be probable, if not inevitable. We therefore think there was evidence tending to show, if not clearly showing, that the injury to appellee was caused by the willful neglect of not only the engineer but conductor of the freight train, who had the power to direct its movements, and ordered or improperly permitted the departure from Falmouth; and the lower court did not err in overruling the motion of the defendant for a peremptory instruction to the jury, if the maxim respondent superior be applicable to a case like this; and that it should be thus applied has been settled by this court in Railroad Co. v Caven's Adm'r, 9 Bush, 559. In that case the action was instituted by the personal representative of an engineer whose life was destroyed by reason of a collision of the train he was on with another freight train. The two trains were not, in that case, as in this, moving in an opposite direction, but the one upon which the deceased was acting as engineer was in the rear of and ran into the other, that was at that time, and had been for a half an hour or more, stationary, at the foot of an up-grade, or vainly trying to ascend it. But, notwithstanding the evidence showed the train dispatcher was also negligent, yet the question of the liability of the company for the negligence of the conductor of the train in front, in failing to give any signal or warning by which those on the coming train might have been advised of the danger of a collision, was directly considered, and determined in the affirmative. It was argued in that case that the rule should be applied that, when a number of persons contract to perform service for another, the employes not being superior or subordinate...