Barrett's Admr. v. L. & N. R. Co.
| Decision Date | 19 December 1924 |
| Citation | 206 Ky. 662 |
| Parties | Barrett's Administrator v. Louisville & Nashville Railroad Company, et al. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Harrison Circuit Court.
T. E. KING and M. C. SWINFORD for appellant.
WOODWARD & WARFIELD, HANSON PETERSON, E. M. DICKSON and ASHBY M. WARREN for appellees.
On the evening of December 24th, 1921, shortly before eight o'clock, appellant's intestate, Edward J. Barrett, was struck by appellee's north bound fast train at what is known as the Falmouth crossing, in the northern edge of Cynthiana, and was killed. This is an action by his administrator for his death, alleged to have been caused by the negligence of the railroad company and its agents and servants.
In the original petition only the railroad company was defendant, and there was a general charge of negligence; but in an amended petition, wherein the engineer and fireman were also made defendants, it was charged that each of defendants negligently and carelessly failed to signal the approach of the engine and train to the crossing, by ringing of the engine bell or blowing the engine whistle, and failed to keep a reasonable lookout for persons on said crossing in approaching the same, and if such lookout had been maintained decedent's peril could have been discovered in time to prevent his death; that defendants were at the time negligently and carelessly operating the train of cars at a high and dangerous rate of speed in approaching the crossing which was a much traveled and used one, both by day and at night by pedestrians and by people in automobiles and other conveyances; that the defendants negligently failed to warn the decedent of the approach of the engine and train, or of the danger to him after his peril was discovered, or could have been by them discovered; that the watchman at the crossing negligently and carelessly failed to warn decedent of the approach of the engine and train, and negligently and carelessly failed to warn him after his peril was discovered, and negligently and carelessly failed to make any effort to rescue him from his position of peril.
The answer put each of these allegations in issue, and in addition relied upon contributory negligence.
On the trial at the close of the plaintiff's evidence the lower court directed the jury to return a verdict for the defendants, upon compliance with which the plaintiff's petition was dismissed and he has appealed.
The correctness of the court's ruling in directing the verdict is the only question presented.
The evidence shows the crossing to be within the city limits, and near the northern edge thereof, and that the street or turnpike diagonally crosses the railroad right of way, the railroad running approximately north and south, while the street or turnpike runs nearer northeast and southwest. There are three tracks crossing the street at this point, the most western being a switch track, the next the south bound track, and the most eastern the north bound track. The most western rail of the switch track is 69 feet from the most eastern rail of the north bound track. The company kept a watchman there and maintained a shanty or watch-house for him a short distance east of the north bound track. This watchman was present in performance of his duties at the time of the accident, and was the only eye-witness to it.
The north bound fast train was due at Cynthiana at 7:13 p.m., but upon the night in question was a few minutes late, and left the station at 7:44, the station being 4,000 feet south of the Falmouth crossing.
Having reached the conclusion from the whole evidence that decedent was himself guilty of such negligence as that the injury would have occurred even though, as claimed, the company and its agents were also negligent, we are relieved of the necessity of considering appellant's contentions as to the...
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