Burton's Adm'r v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 17 November 1908
• Citation: 113 S.W. 442
• Parties: BURTON'S ADM'R v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Kentucky Court of Appeals

113 S.W. 442

BURTON'S ADM'R v. CINCINNATI, N. O. & T. P. RY. CO.

Court of Appeals of Kentucky.

November 17, 1908

Appeal from Circuit Court, Pulaski County.

"Not to be officially reported."

Action by W. B. Burton's Adm'r against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and new trial granted.

Campbell & Williams and Virgil P. Smith, for appellant.

O. H Waddle & Son and John Galvin, for appellee.

CARROLL J.

This is an action brought by the appellant, who was the plaintiff below, to recover damages for the death of his intestate, W B. Burton, alleged to have been caused by the negligence of the appellee company, and its locomotive engineer, in so operating and managing one of its engines and trains as to run the same against and upon him. The answer was a traverse and a plea of contributory negligence, and the charge that the deceased was a trespasser on its tracks and premises at the time he received the injuries complained of. A trial before a jury resulted in a verdict and judgment in favor of the railway company. The errors complained of are that the court erred in giving and refusing instructions, and that the verdict is against the evidence.

The deceased was a boy about 11 years of age. He was struck by one of appellee's engines in the daytime in its yard at Somerset, Ky. His father worked for the company in its roundhouse, located in the yard, and the deceased, who for some months had each day been taking his father's dinner to him, was on his way home from the roundhouse, where he had gone to take his father's dinner, when he was struck. Immediately in front of the passenger depot there are two parallel tracks, the nearest one to the depot being track No 1. Between track No. 1 and track No. 2, there is a cinder path, the space between the two tracks being about 7 feet. The boy on his way home walked north on the outside of track No. 1, but parallel with it, for some distance, until he came nearly to the depot. He then crossed track No. 1, and continued to walk north toward the depot on the cinder path between the two tracks. About the time he crossed track No. 1 to get on the cinder path a passenger train came in, going south on track No. 2, and stopped in front of the depot. At the time the south-bound train came in, a passenger train was coming north on track No. 1. This is the train that struck the deceased. For some reason, doubtless to be entirely clear of the train on track No. 2, he left the position in which he had been walking in the middle of the cinder path, and stepped over to the end of the ties on track No. 1, and while walking on the end of the ties was struck by the pilot beam of the engine on track No. 1. His back was towards this engine, as he was going in the same direction it was. He was struck immediately in front of the depot, where a large crowd had congregated. The bells on both engines were ringing, and there was the noise and confusion incident to the arrival of two passenger trains at a depot, where a large amount of railroad business was carried on. The engine that hit him was moving, according to the evidence of some witnesses, at the rate of four or five miles an hour, while other witnesses said it was running faster than this. The engineer and fireman were both keeping a lookout, but the engineer did not, and could not, see the boy when he was hit, because he was on the opposite of the engine from him. The fireman however, saw him, and upon his signal to the engineer that the boy had been struck, the train was soon stopped. Track No. 1 is straight for a distance of 1,000 feet south of where the boy was struck, and a person standing or walking at this place could be seen for this distance by the persons in charge of the engine. There is evidence tending to show that, when the south-bound train on track No. 2 reached a point about opposite where the boy was, he left the middle of the cinder path...