C. & O. Ry. Co. v. Salyers
| Decision Date | 18 November 1919 |
| Citation | 187 Ky. 144 |
| Court | Kentucky Court of Appeals |
| Parties | Chesapeake & Ohio Railway Company v. Salyers. Salyers v. Chesapeake & Ohio Railway Company. |
Appeals from Boyd Circuit Court.
JOHN W. WOODS and ARTHUR BRYSON for Salyers.
WORTHINGTON, COCHRAN & BROWNING and PRICHARD & PUTMAN for the railroad company.
These appeals are made upon the same record.
On the night of November 28, 1914, at about midnight, John Salyers, was struck, as he claims, by either the tender of an engine of the Chesapeake and Ohio Railway Company, or, by a car of one of its freight trains, while on the Chestnut street crossing, at Clyffeside, which is a small town, upon the line of the railroad, about halfway between Ashland and Catlettsburg. Salyers claims, that, on the night mentioned, he was returning from Ashland to his home at Keyes creek, upon a street car, and when he arrived at Clyffeside, near Keyes creek, he got off of the street car, for the purpose of going to the offices of the Bates-Rogers Construction Company, which was engaged in certain construction work, at Clyffeside, and for which, he had, until recently, theretofore, been engaged in working. His purpose was to secure further employment. When he got off of the street car, he went over the crossing and to the plant of the construction company, but, not finding the foreman, under whom he had formerly worked, he undertook to return and to go over the crossing, again, and thence to his home, at Keyes creek, and when he arrived at the Chestnut street crossing, which is a public highway or street crossing over the tracks of the railroad, at that point, and when about ten feet from the "west bound" tracks, he looked along the railroad, in both directions, to ascertain if any cars were moving upon the tracks with which he might come in contact, and neither seeing nor hearing the approach of any cars of the railroad company, he started to go over the tracks, and when upon a "cross over" track, which connects the "east" and "west bound main" tracks, at the crossing, he was struck, by a car, or the tender of an engine with cars attached, which was moving three or four miles an hour, knocked down and dragged along the track for about fifty feet, when he was thrown out, or succeeded in extricating himself. The engine or the engine with cars attached proceeded on, and in about one-half hour, returned, with a train of cars attached, when Salyers was discovered beside the track. There was no light upon the end of the car, or the tender of the engine, which struck him, and no warning of its approach was given by the ringing of a bell or whistle, and he did not know of its approach, until it struck him. The result of the collision was, that Salyers' right leg was cut off above the knee, the heel of his left foot cut off, a hip was broken, a hole torn in his right side, and a wound torn in his abdomen, seven or eight inches in length, and extending down to the line of the scrotum. According to Salyers, the night was very dark, with rain falling, and it was with difficulty, that one could find his way. It appears, from the evidence, that, at the crossing, which is a crossing from the county road, over into a street or road which leads to certain manufacturing plants, there are three railroad tracks called the "east" and "west bound main" tracks, and probably a middle track and a "cross over" track, connecting the "east and west bound main" tracks. The testimony, as to the location of the tracks, and buildings and places mentioned in the evidence, is not intelligible, since the witnesses testified with relation to maps, which were used to illustrate the evidence given upon the trial, but which the parties have not thought to be necessary to accompany the record. For the same reason, the position of witnesses, relative to the places, where they testified, that things occurred, and which illustrated their ability to see and know the things about which they testified, can not be appreciated, although these matters could be fully understood and appreciated by the trial court. It was, further, proved, without contradiction, that the crossing, was a very public one, inasmuch as there were many dwellings and business houses in close proximity to it, and that, for a considerable time, before the injury, seven to eight hundred persons passed over the crossing daily, and it was used habitually in that way, both by day and at night, with the knowledge of the employees of the railroad, and was such a place as they were bound to expect the presence of persons upon the tracks of the railroad. At the time of the injuries complained of, it seems that a freight train, of the railway company, was proceeding toward the east, and when it arrived at Clyffeside, it received orders to attach a number of freight cars, which were standing upon a track, called the "hole" track, and in order to do this, it was necessary to disengage the engine from the remainder of the train, to back the engine over the "cross over" track, and to proceed along another track, until connection could be made with the cars upon the "hole" track, and then to return, with them, to the track where the disengaged cars were left. In so doing, no light was shown upon the end of the tender, and the theory of the plaintiff, is, that Salyers was struck by the tender of the engine, as it was endeavoring to go over the crossing. The railway company, contends, that a warning of the movement of the engine, was given by the continuous ringing of an automatic bell.
Salyers instituted this action against the railway company and the engineer, conductor and fireman, who were in charge of the freight train, to recover damages for his injuries, alleging, that they were caused from the negligence of the employees of the railroad company in the management and operation of the train. The defense, interposed, was a denial of the negligence alleged, and in addition, a plea of contributory negligence upon the part of Salyers, without which his injuries would not...
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