Campbell v. Mobile & O.R. Co.

• Decision Date: 20 June 1913
• Citation: 157 S.W. 931,154 Ky. 582
• Parties: CAMPBELL v. MOBILE & O. R. CO. (two cases).
• Court: Kentucky Court of Appeals

157 S.W. 931

154 Ky. 582

CAMPBELL v. MOBILE & O. R. CO. (two cases).

Court of Appeals of Kentucky.

June 20, 1913

Appeal from Circuit Court, Hickman County.

Actions by R. L. Campbell and Mrs. Jennie Campbell against Mobile &amp Ohio Railroad Company, which were consolidated below. From judgments for defendant, plaintiffs appeal. Reversed and remanded.

Bennett Robbins & Thomas, of Clinton, for appellants.

E. T Bullock, of Clinton, for appellee.

TURNER J.

On the morning of September 16, 1911, about 3:20 a. m appellee's south-bound fast train running at the rate of 55 miles an hour killed two horses at a grade crossing in Hickman county. One of the horses belonged to appellant R. L. Campbell, and the other to Mrs. Jennie Campbell. The two actions by agreement were heard together in the lower court, and will be heard together here. The court after the introduction of all the evidence gave a peremptory instruction to find for the defendant and the plaintiffs appeal.

The court placed the burden of proof on the defendant, and it introduced the engineer and fireman in charge of the train, who were the only eyewitnesses to the occurrence. They stated, in the substance, that the train was a little late and was running about 55 miles an hour; that the crossing and in question is on a curve, and north of the crossing and in this curve is a cut; that upon the occasion in question the fireman was on the east side of the cab, which was the outside of the curve, and the engineer was on the west side; that in the dirt road just east of the railroad crossing was a depression; and that, by reason of the cut in the curve and the depression in the dirt road stock approaching the crossing from the east on the dirt road could not be seen for a very great distance. The fireman stated that he was looking out and when from 60 to 100 feet from the crossing, for the first time, he saw several horses rapidly running on the dirt road toward the crossing from the east and immediately notified the engineer but that before anything could be done, and almost simultaneously with such notification, the engine and horses met on the crossing; that, between the time he notified the engineer and the collision, there was no time to give the stock signal. They state they did not give the stock signal or put on the brakes after discovering the stock because there was no time to do so. The train was equipped with an electric headlight, and modern air brakes which were in perfect order. Neither of them stated whether or not the signal for the crossing was given, as required by section 786 of the Kentucky Statutes.

The evidence of the plaintiffs was given by witnesses who were not present at the time of the injury, and who were not at the place of the injury for several hours thereafter; but they undertake to state such facts locating the bodies of the two horses, the places where blood was seen, and other signs indicating the point where the horses were struck, certain tracks which were seen on the west side of the railroad, indicating that some horses had approached from that side and that no tracks were then discernible approaching the crossing from the east side, and from these circumstances it is argued that the physical facts disclose a state of case which justified a submission to the jury of the question of negligence. The evidence further shows that each of the horses was struck on the rump by the engine and thrown to the west side of the track; this fact, if it shows anything, is an indication that the horses were going from east to west as testified to by the fireman and engineer, and were almost across the track when struck; if they had been struck on the rump while going from west to east, it seems that they would have been knocked off on the east side of the track.

The engineer and fireman are unimpeached; their testimony is clear,...