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

• Decision Date: 07 February 1893
• Parties: BRADSHAW'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

21 S.W. 346

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

Court of Appeals of Kentucky.

February 7, 1893

Appeal from circuit court, Christian county.

Not to be officially reported.

Action by William Bradshaw's administrator against the Louisville & Nashville Railroad Company for killing plaintiff's intestate, a section hand in defendant's employ. From a judgment in defendant's favor, plaintiff appeals. Affirmed.

A. H Clark and W. R. Howell, for appellant.

Joe McCarroll, for appellee.

BENNETT C.J.

The appellant's intestate, while in the employment of the appellee as section hand, was thrown from a hand car which he was helping to propel, and was run over by the cars and killed. It is alleged that said killing was caused by the willful neglect of the appellee, in manner as follows: That by the direction of the section boss, under whose control the intestate was, he got onto the overcrowded hand car, which was being operated by the appellee for the transportation of section hands; that by the order of the said boss they were required to reach a certain siding on said road in advance of the time that a passenger train was to pass; that the intestate, by the direction of the said boss, operated one of the levers, and, while operating the same with all his "manhood," his hand slipped, and he fell; and that by reason of the overcrowded condition of the car, he fell to the ground, and the car ran over him and killed him. All railroads have such hand cars as described in the petition for the transportation of their hands from one point to another along the tracks of the roads, which are propelled by hand. It is not alleged that the car in question was unfit for the purpose of transporting the intestate and the other hands thereon; nor is it alleged that the hand of the intestate slipped by reason of any negligence of the appellee. But the alleged gravamen of the appellee's negligence consists in the fact that the car was overcrowded with the hands in the employment of the appellee, which caused the intestate to fall overboard, when his hand slipped, instead of on the platform of the car, thereby losing his life. Now, it is not alleged that the intestate did not know that the car was "overcrowded;" nor is there any inference to be drawn to that effect; on the contrary, the inference is that, if such was the fact, he could and did see it, and knew it. Such being the case, it was his right and duty to...