Blankenship's Adm'r v. Norfolk & W. Ry. Co.

• Decision Date: 01 March 1912
• Citation: 147 Ky. 260,143 S.W. 995
• Parties: BLANKENSHIP'S ADM'R v. NORFOLK & W. RY. CO.
• Court: Kentucky Court of Appeals

143 S.W. 995

147 Ky. 260

BLANKENSHIP'S ADM'R v. NORFOLK & W. RY. CO.

Court of Appeals of Kentucky.

March 1, 1912

Appeal from Circuit Court, Pike County.

Action by Elbert S. Blankenship's administrator against the Norfolk & Western Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Roscoe Vanover, for appellant.

J. R Johnson, Jr., and Holt & Duncan, for appellee.

MILLER J.

On June 12, 1910, Elbert S. Blankenship was killed at Lynn, in Mingo county, W. Va., by one of appellee's trains. At this point appellee's road is double tracked. Blankenship was a track walker in the service of the appellee, and it was his duty, under that employment, to walk upon and along both the east and west bound tracks of the road in his section, with a view of ascertaining whether or not the track was safe, and to do light repair work thereon, such as tightening bolts driving in spikes, etc., whenever he found such work necessary in order to keep the road in good repair. He had been engaged in this particular character of work for the appellee about three months, making daily trips over both tracks within that section of the road. Prior to this particular employment he had been working for the appellee as a section hand for some time in the immediate neighborhood of Lynn, where the accident occurred. On the day of the accident Blankenship had walked over the tracks on that part of his section which lies west of Lynn, had returned to Lynn at noon, had eaten his dinner, and was doing the work of spiking down some plates on the southern or east-bound track when an east-bound freight train approached. Upon the approach of this east-bound train Blankenship stopped work, and stepped off onto the north track, and stood there looking at the passing east-bound train, and while so engaged, and when about three-fourths of the east-bound freight train had passed, Blankenship was struck by a west-bound train and instantly killed. At this point of the road the tracks curve sharply toward the southeast, so that the view of the engineer upon the west-bound train was obscured by the east-bound train to such an extent that Blankenship could not be seen by the engineer on the west-bound train until the engine of that train was within about 75 feet of the point where the accident occurred. It was then impossible to stop the train so as to prevent the accident, although every effort was made to do so.

Blankenship's administrator brought this action under the West Virginia statute, and alleged that Blankenship's death was the result of appellee's negligence in not sounding the whistle or ringing the bell of its engine, and without any notice or warning to Blankenship of the approach of the train. Appellee answered, denying negligence on its part interposed a plea of contributory negligence in a second paragraph, and in the third paragraph it pleaded that plaintiff's intestate lost his life in West Virginia, and that, if Blankenship's death was the result of negligence, it was the negligence of the fellow servants of Blankenship, for which appellee was not liable under the laws of West Virginia. At the conclusion of all the testimony the court peremptorily instructed the jury to find for the defendant, and from a judgment upon that verdict this appeal is prosecuted by Blankenship's administrator.

Blankenship worked under the supervision of Viars, the section foreman of the railway company; and, although the...