Barber v. Cincinnati, N.O. & T.P.R. Co.

• Decision Date: 04 February 1893
• Citation: 21 S.W. 340
• Parties: BARBER v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Kentucky Court of Appeals

21 S.W. 340

BARBER v. CINCINNATI, N. O. & T. P. RY. CO.

Court of Appeals of Kentucky.

February 4, 1893

Appeal from court of common pleas, Jessamine county.

Not to be officially reported.

Action by Julia A. Barber against the Cincinnati, New Orleans & T P. Railway Company for killing plaintiff's intestate. The court directed a verdict in defendant's favor, and plaintiff appeals. Reversed.

Robert J. Breckenridge and Robert Harding, for appellant.

C. B Simrall and Bronough & Bronough, for appellee.

HAZELRIGG J.

The appellant's husband was engaged in getting out ballast for the appellee, at a point on the line of its road near High Bridge, Ky. The quarry was on the west side of the track, on a hillside, and, to obtain a suitable place for piling the rock, he had to wheel it across the track, and along by the side of it a short distance, to a level point on the east side, and for that purpose was required to place planks across the road on which to use his wheelbarrow. While so engaged, he was struck and killed by the engine of the appellee. For damages occasioned by its alleged willful negligence, the appellant, who is the widow of the deceased sued the appellee. She introduced proof establishing the foregoing undisputed facts, and, in addition, proved by one or more witnesses that one of the rules and regulations promulgated by the railway company required "warning signals by the train to the laborers working on the road." By another, who was familiar with the rules, she proved that "the men were required to work right up to the time of train passing, and not to lose time. It was the duty of those managing the engines of moving trains to give warning signals to the hands working on the track and along the track, in time to enable them to get out of the way, and clear the track for the train to pass." She also proved that "the engineer and fireman had passed and repassed this point on the track where Barber was killed, a number of times while he was at work, and knew he was working there." She also introduced proof conducing to show that the only signals given on the occasion in question were the danger signals, and these only when the train was within a few feet of the deceased; that the train was behind time, and was traveling at lightning speed,-some 40 miles an hour; that the wind was blowing in a direction unfavorable for hearing at the point where the deceased was working; that he...