Bell's Adm'x v. Chesapeake & O. Ry. Co.

• Citation: 161 Ky. 466,170 S.W. 1180
• Parties: BELL'S ADM'X v. CHESAPEAKE & O. RY. CO.
• Decision Date: 09 December 1914
• Court: Court of Appeals of Kentucky

170 S.W. 1180

161 Ky. 466

BELL'S ADM'X v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

December 9, 1914

Appeal from Circuit Court, Lewis County.

Action by Bell's administratrix against the Chesapeake & Ohio Railway Company. From a judgment on a directed verdict for defendant, plaintiff appeals. Affirmed.

Allan D. Cole, of Maysville, for appellant.

Worthington Cochran & Browning, of Maysville, for appellee.

MILLER J.

At about 6:15 o'clock on the morning of December 13, 1912 the body of appellant's intestate, George Bell, was found lying near appellee's east-bound track, about 300 feet east of the South Manchester depot, in Lewis county. His head was lying near the cross-ties, with his feet extended towards the hillside. The back of Bell's head was crushed, his neck broken, and there were a few scratches on his face and body. Bell was a section laborer in the service of the appellee. On the night in question his work was that of a watchman, his particular duty then being to watch for slips and slides along the hillside adjoining the track, as well as the river bank of section 217, which extended from a point about three-quarters of a mile east of the South Manchester station, to a point about the same distance west of the station. On December 12th, the day before Bell's body was found, he had worked from about 6 o'clock a. m. to 2 o'clock p. m. He then went on duty again at 4 o'clock p. m. on the 12th, to remain on duty until 6 o'clock the next morning; and, as above stated, his body was found shortly after that time. Section 216 of the railroad is east of section 217; and, at the point where the two sections meet, there is a shanty which was used for shelter by the track walkers and watchmen. Bell was last seen alive at the shanty about half past 4 o'clock a. m. by Wilson, a track walker on section 216. At that time Wilson left the shanty going east upon his inspection, leaving Bell, who was preparing to go west upon his route. Freight train "First No. 98" passed the South Manchester station going east at 5:15 a. m. on the morning of the 13th. Freight train "Second No. 98" going east passed the station at 5:30 a. m.--fifteen minutes later. Freight train No. 77 passed the South Manchester station going west at 5:30 a. m It will thus be seen that train "Second No. 98" going east, and train No. 77 going west, passed each other at the Manchester station at 5:30, 15 minutes after train "First No. 98" had passed that station going east. It is contended that Bell was struck and killed by train "Second No. 98" at a point where the hill comes down to the track between the shanty and the South Manchester station; and his administratrix having brought this action to recover damages for Bell's death, and the circuit court having peremptorily instructed the jury to find for the defendant at the close of the plaintiff's testimony, the plaintiff brings this appeal.

The appellant relies upon the following four acts of negligence upon the part of the appellee, any one of which it is claimed was sufficient to carry the case to the jury: (1) Negligence in failing to equip train "Second No. 98" with a burning headlight; (2) negligence in the operation of said train; (3) negligence in failing to give Bell a sufficient number of helpers or assistants to enable him to do his work as a watchman; and (4) negligence in violating the Hours of Service Act of Congress. It will be noticed, however, that each of these grounds is necessarily based upon the alleged negligence of the appellee; and, if the evidence fails to show any such negligence, no one of the grounds is well taken, and the judgment should be affirmed.

The only direct evidence that could possibly tend to connect the appellee with the death of Bell is found in the testimony of Belton, the engineer of train "Second No. 98." He testified very briefly; the material part thereof being as follows:

"Q. Did you pass any train there at South Manchester that was coming west that morning? A. I passed 'First 77' east of South Manchester. Q. After you arrived at the Manchester station, did you see anything ahead of you, or anything that looked like a man with a lighted lantern? A. I did. Q. At what point after you arrived at the station was it that you discovered the man with the lantern? A. On the hillside east of Manchester station. Q. You discovered him on the hillside, near the hillside, east, you say? A. Yes, sir. Q. Now, did you say whether, when you got to the station--when did you first see him? A. I seen him east of the station. Q. How far east of the station were you when you seen him? A. About 600 or 800 feet, about that, east of Manchester station. Q. What was he doing when you first saw him? A. Standing on the hillside. Q. How fast was the train going? A. About 25 miles an hour. * * * Q. Did you blow any whistle for him? A. I whistled at the crossing at Manchester. Q. That was just east of the depot? A. At the depot--right at the depot. Q. When did you learn that he had been struck? A. On my arrival at Russell, at the end of my division."

Upon being recalled by the plaintiff, Belton further testified, in answer to interrogatories by the court:

"Q. By the Court: How close was this man to the track when you saw him? A. About 15 feet away from the track. Q. By the Court: Up on the hillside above there? A. On the hillside; yes, sir. Q. By the Court: Did you notice what he was doing? A. He ran down the fill and crossed the track in front of my engine."

This closed Belton's testimony.

It is strenuously argued by counsel for appellant that the above testimony of Belton shows that he was negligent in...