Big Sandy & C.R. Co. v. Blankenship

• Decision Date: 21 April 1909
• Citation: 118 S.W. 315
• Parties: BIG SANDY & C. R. CO. v. BLANKENSHIP.
• Court: Kentucky Court of Appeals

118 S.W. 315

BIG SANDY & C. R. CO. v. BLANKENSHIP.

Court of Appeals of Kentucky.

April 21, 1909

Appeal from Circuit Court, Pike County.

"Not to be officially reported."

Action by Harriett Blankenship against the Big Sandy & Cumberland Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sheppard Goodykoontz & Scherr and A. E. Auxier, for appellant.

P. B Stratton, W. A. Dougherty, and Roscoe Vanover, for appellee.

O'REAR J.

Appellant is the owner and operates a narrow-gauge railroad from a point in West Virginia through a section of Pike county, Ky and into the state of Virginia. A lumber company operates a branch road connecting with appellant's road in Pike county, and uses in that connection a part of appellant's main track. Appellee was a passenger on one if appellant's trains. A log train of the lumber company came upon the appellant's track at a time when appellant's train was due to pass, and had the right of way over the track. A collision resulted. In the shock and excitement, appellee, believing she was in peril of being killed or seriously hurt by staying in the coach in which she was riding, jumped off the moving train, and was injured. This suit was brought by her to recover damages for the injury, charging the operatives of appellant's road with negligence in failing to provide and keep a safe track, and in failing to learn of the presence of the other train. The verdict of the jury was for appellee.

Appellant asks that its liability be confined to its care of its own train, and that, as those operating the log train were clearly in fault in causing the collision, appellant ought not to be held liable therefor. The log road was using appellant's road as a lessee or licensee. Appellant, as charter owner and operator of the road, could not dispense with its public duty to maintain a safe, clear track for the passage of its passenger trains. The presence of the other train at the time when the collision occurred was a preventable obstruction on the track, and the allowance of which by appellant was negligence as to the latter's passengers injured because of the fact. Appellant could not abdicate its duty to the public by suffering the management or control of its tracks to pass out of its hands so as to relieve itself from liability if injury resulted to its passengers because of its cession of the use of its tracks to another company. Appellee may not...