Becker v. Louisville & N.R. Co.

• Decision Date: 12 April 1901
• Citation: 61 S.W. 997,110 Ky. 474
• Parties: BECKER v. LOUISVILLE & N. R. CO. [1]
• Court: Kentucky Court of Appeals

61 S.W. 997

110 Ky. 474

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

Court of Appeals of Kentucky.

April 12, 1901

Appeal from circuit court, Lincoln county.

"To be officially reported."

Action by Claude W. Becker, by next friend, against the Louisville &amp Nashville Railroad Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Robert Harding, John W. Rawlings, and Emmet V. Puryear, for appellant.

Chas R. McDowell and J. W. Alcorn, for appellee.

GUFFY J.

It is substantially alleged in the petition that one Mary Vanarsdale, an infant between 12 and 14 years of age, was upon the railroad bridge of the defendant at said time and place, and in front of said approaching train, and in great danger and peril of being run over by said train, and was placed in said danger and peril aforesaid by the gross negligence of defendant in failing to slacken said speed of said train after it became aware of her presence on said track and bridge, and by the gross negligence of the defendant in failing to stop said train after it became aware of her presence on said track and bridge, and by the gross negligence of the defendant in the operation of said train after it became aware of her presence thereon, and that defendant became aware of her presence on said bridge in ample time to slacken the speed of said train to avoid running over and upon her and relieve her of said danger and peril. It is further alleged that plaintiff, Becker undertook to rescue the said Vanarsdale from her peril and danger, and to enable her to escape from being killed by said train by the gross negligence of defendant, and in his efforts to rescue said Vanarsdale, and while he was endeavoring to do so, the train ran over him, knocking him from said bridge, and permanently injuring him, to the damage of $5,000, for which he prayed judgment. The answer denies that on the occasion mentioned it could have slackened the speed of its train any more than it did after it became aware of the presence of said Vanarsdale and plaintiff, or that after it became aware of their presence on the bridge it could have avoided running over them. Denies any negligence at all. The answer may also be treated as pleading contributory negligence upon the part of the plaintiff. It is also pleaded that neither plaintiff nor Vanarsdale had any right to be upon the bridge in question. The affirmative averments of the answer were properly denied by reply. After the pleadings were made up, and various motions disposed of which we deem it necessary to notice, the trial was entered into; and at the conclusion of plaintiff's testimony the court, upon motion of defendant, instructed the jury peremptorily to find for the defendant, which was accordingly done. And, plaintiff's motion for a new trial having been overruled, he prosecutes this appeal.

The sole question presented for decision is whether the plaintiff was entitled to have the case submitted to the jury, or, in other words, was there sufficient evidence from which the jury might find a verdict for the plaintiff? It appears from the evidence in this case that five children, to wit, Ed Hunn, Katie Hood, Lillie Owens, Mary Vanarsdale, and plaintiff, the ages of whom are about as follows: Lillie Owens, between 8 and 9; Ed Hunn, in his fourteenth year; Katie Hood, about 15; Mary Vanarsdale, between 12 and 13; and the plaintiff, in his fourteenth year, --had gone to the creek for the purpose of fishing, and, not being satisfied with the first point they reached, decided to go to another place, and, to reach it, decided to cross the creek on the railroad bridge, and while crossing it they heard or by some means became aware of the approaching freight train, and at once made an effort to get out of the way of the train, by continuing to cross the bridge to the other side of the creek. Three of the party escaped, but Miss Vanarsdale, it seems, fell through between the ties or bars of the bridge; and the plaintiff, who seems to have been her escort, sought to rescue her, and perhaps pulled her up once out of the opening in which she had fallen, but she again fell into another, and as the result of this delay she was killed, and the plaintiff suffered the injuries sued for in this action.

It is the contention of appellee that plaintiff had no right to be on the bridge, and that it owed him no duty until after it discovered his peril, which it claims it did not do in time to avoid the injury; also that he was guilty of such contributory negligence as to bar his right to recover. It is evident that it was the legal right as well as the moral duty of the plaintiff to...