Brackett's Adm'r v. Louisville & N.R. Co.

• Decision Date: 20 June 1908
• Parties: BRACKETT'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

111 S.W. 710

BRACKETT'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

June 20, 1908

Appeal from Circuit Court, Bell County.

"Not to be officially reported."

Action by China Brackett's administrator against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Nunn J., dissenting.

N. J Weller and Weller & Points, for appellant.

Benjamin D. Warfield, C. W. Metcalf, and J. W. Alcorn, for appellee.

HOBSON J.

Mrs China Brackett was killed by being mashed between two cars at Four Mile, a station on the Louisville & Nashville Railroad between Pineville and Corbin, Ky. It is a small place. The depot is on the west side of the main track, and the storage track is east of the main track. East of the storage track is the post office and two restaurants. There are coal mines in the neighborhood, at which the coal cars are loaded. They are then brought to Four Mile, and put on the storage track until some train comes along to take them out. On the day on which Mrs. Brackett was killed the storage track was pretty well filled with loaded coal cars, although there were, at different places along the track, spaces between the cars. About midway between the two restaurants there was a short space between two coal cars. One witness stated that the space between the cars was six feet; another witness says three feet. Perhaps one meant that the space was six feet from one car to the other, while the other meant that the space was three feet from one of the bumpers to the other. As the passenger train was pulling in from the south, Mrs Brackett, who had been at the post office, and wished to go over to the platform, thinking that her husband might come in on the train, walked from the post office down the track until she got to this space between the two cars. There she was joined by three other ladies, who were also going over to the platform. Just at this time a freight train, going in the opposite direction, was at the north end of the switch, and pulling in on the side track to get out of the way of the passenger train. To do this it pushed the cars standing on that track ahead of it; and, just as Mrs. Brackett was between the two cars, as she was going across the track, the cars closed in on her, catching her between the two bumbers, and so injuring her that she died. The situation is shown on the following map, the point A indicating where she was caught between the two cars:

(Image Omitted)

There is a walkway from the post office out to the track, made of plank, and a similar walkway from the Spurling restaurant out to the track. She did not follow these walks, as there was no opening in the cars at the end of either of them. The space between the two tracks was filled with cinders, so that it was a good place for walking. There was some proof offered by the plaintiff to the effect that no signal for the movement of the cars was heard just at the time they came together, and it is very evident that none of the four ladies who were crossing the track had any idea that the cars were about to be moved. It is also evident from the proof that those in charge of the freight train could not see the ladies on account of the cars obstructing the view, and that they had no idea that anybody was between the cars or would be endangered by their moving them. The freight train had whistled for the station, and was ringing its bell as it pushed in on the side track; but the noise of the incoming passenger train, which was then just rolling past, prevented the ladies from hearing the noise or the signals of the freight train. At the conclusion of the evidence the court instructed the jury peremptorily to find for the defendant. The plaintiff appeals.

It is manifest from the proof that the space between the two cars at the point A, was not left as a passway for persons. There was no crossing at that point, and the...