Byrge's Adm'x v. Louisville & N. R. Co.

• Decision Date: 18 May 1943
• Citation: 294 Ky. 366,171 S.W.2d 1010
• Parties: BYRGE'S ADM'X v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

171 S.W.2d 1010

294 Ky. 366

BYRGE'S ADM'X v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

May 18, 1943

Appeal from Circuit Court, Perry County; Jay W. Harlan, Special Judge.

Action by Ezekiel Byrge's administratrix, Martha Lethgo, against the Louisville & Nashville Railroad Company for the wrongful death of the intestate. Judgment for defendant, and plaintiff appeals.

Affirmed.

Jesse Morgan, of Hazard, for appellant.

Craft &amp Stanfill, of Hazard, C. S. Landrum, of Lexington, and H. T Lively, of Louisville, for appellee.

CAMMACK Justice.

On the first trial of this cause (Louisville & N. R. Co. v Byrge's Adm'x, 273 Ky. 570, 117 S.W.2d 585), the evidence showed that Byrge was run over by one of the Company's trains while lying on his back on the railroad track several hundred feet north of the depot at Hazard, shortly after daybreak on the morning of June 17, 1934. The only eyewitness was the engineer in charge of the train. This witness testified he did not discover Byrge's peril in time to avoid injuring him. The judgment against the Company was reversed, therefore, because of our rulings to the effect that one sitting or lying upon a railroad track, regardless of the location of the track, is looked upon as a trespasser to whom the Company owes only the duty to exercise ordinary care to avoid injuring him after discovering his peril. The engineer did not testify at the second trial, nor was any testimony offered showing that Byrge was struck or run over by a train. A directed verdict was given in favor of the Company at the conclusion of the appellant's evidence; hence this appeal.

Two witnesses testified they saw Byrge just above the depot at Hazard sometime before daybreak on the morning he was injured. They said they stopped and talked with him a few minutes and that he told them he was on his way to his home at Christopher some three miles from Hazard. Two other witnesses testified they went to the place where Byrge was found after he had been taken to the hospital and that they saw some hair and blood on a railway tie. W. H. Siler testified that shortly after 5 o'clock on the morning in question he saw a train coming toward the depot and he heard it stop; that if any signals were given he did not hear them that as he was going home from the premises of the Home Lumber Company where he was employed he saw the train standing near the Lumber Company; that he went to that point and was told by the boys "they had found a man there"; that he was told it was Ezekiel Byrge; that some of the train crew were talking with Byrge; and that he was lying between the two tracks or on the side track. Considerable evidence was offered to show that a lookout duty was owed by the Company at the place where Byrge was found, because of the use of...