Bevin's Admr. v. C. & O. Ry. Co. and Schump

• Decision Date: 15 February 1921
• Citation: 190 Ky. 501
• Parties: Bevin's Admr. v. C. & O. Railway Co. and Schump.
• Court: Kentucky Court of Appeals

190 Ky. 501

Bevin's Admr. v. C. & O. Railway Co. and Schump.

Court of Appeals of Kentucky.

Decided February 15, 1921.

Appeal from Lawrence Circuit Court.

JOHN W. WOODS and ARTHUR T. BRYSON and A. O. CARTER for appellant.

M. C. KIRK, F. T. D. WALLACE, KIRK & KIRK and WORTHINGTON, COCHRAN, BROWNING & REED for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

About 1 o'clock a. m., October 30, 1916, on a public railroad crossing in the east end of the city of Catlettsburg, George W. Bevins was run over and injured by the tender of an engine belonging to the appellee, Chesapeake & Ohio Railway Company and operated by its servants. Bevins died from the injuries sustained in the accident an hour or two after they were received. Thereafter this action was brought against the appellee railway company and the appellee, Floyd Schump, the locomotive engineer in charge of the engine at the time of the accident, by the administrator of the decedent's estate seeking the recovery of damages for the latter's death, alleging that it was caused by the joint and concurring negligence of the appellees. The latter by joint and separate answer denied the negligence charged to them and alleged that in the matter of receiving the injuries which caused his death the appellant's decedent was himself guilty of negligence which so contributed to his injuries and death, that but for same he would not have been injured or killed. The latter plea was controverted by reply and upon the issues thus made the case went to trial, which resulted in a verdict in favor of appellees, returned by the jury in obedience to a peremptory instruction from the court directing them to so find. The appellant was refused a new trial, complaining of which and of the judgment entered upon the verdict he has appealed.

The facts appearing from the evidence were as follows: appellee's railroad runs in an easterly and westerly direction at the crossing where the accident occurred and where it crosses the street or highway there are two tracks, one a main track, the other a switch. The train of which the engine and tender by which Bevins was killed were a part, was an east bound freight, running from Ashland by way of Catlettsburg up the Big Sandy River Branch. Just prior to the accident the train had been brought to a stop near the crossing. The engine and tender were then uncoupled and moved on to the side track to take up several cars thereon to be attached to the train. The engine and tender in backing on the side track and over the crossing there struck and ran over the decedent, causing the injuries of which he died. The engine and tender were at the time moving at a speed of between two and four miles an hour,...