Ch. & Ohio Ry. Co. v. Lang's Adm'X
| Decision Date | 26 October 1909 |
| Citation | 135 Ky. 76 |
| Parties | Ch. & Ohio Ry. Co. v. Lang's Adm'x |
| Court | Kentucky Court of Appeals |
Appeal from Mason Circuit Court.
Judgment for plaintiff, defendant appeals. — Reversed.
WORTHINGTON, COCHRAN & BROWNING for appellant.
THOMAS D. SLATTERY for appellee.
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Anthony A. Lang was a section hand in the service of the Chesapeake & Ohio Railway Company. It was a part of his duty to act as track walker between South Ripley and Dover, a distance of about six miles. One of his duties was the lighting of the signal and switch lights between these points, and to save time he was allowed to use a velocipede. On December 19, 1905, he had been to South Ripley and was returning to Dover, where he lived. Just before the road reaches Dover it passes over a trestle. While Lang was going over this trestle, a rapidly moving passenger train came up behind him, knocking him off the track and killing him. This suit was brought by his personal representative to recover for his death, on the ground that those in charge of the engine and train perceived his danger and, after perceiving it, could by proper care have avoided killing him. There was a verdict and judgment in the plaintiff's favor for the amount sued for, $2,000, and the railroad company appeals.
One witness, who lived about 100 feet from the railroad track and about 800 feet east of the trestle, testified that he was sitting in his room, and saw Lang go by on the velocipede. He seemed to be going along very leisurely. The witness then got up and went into his kitchen, and just as he got into the kitchen he heard the whiz of the passenger train. He was uneasy about Lang, for he had seen him pass, so he stepped to the window to see if he had gotten across the bridge, and, as he reached the window, he saw him at the end of the bridge, and the witness could only see him half way across the bridge. The train was only about 100 feet behind decedent when the witness last saw him. The train did not whistle or give any signal until after it had gotten beyond the bridge. Another witness testified that she lived just west of the bridge. She was tired and went to the window. She saw Lang going by, and watched him until he got about across the bridge. While she was standing there the train came along. She looked until it got close to him. She turned her eyes, and the train struck him. The window at which she was standing faced the bridge. She also testified that there was no whistle or ringing of the bell until after Lang was struck. Lang did not look back, so far as she saw. The train was an extra, consisting of an engine and three baggage cars, running at the rate of 45 or 50 miles an hour. There was proof on behalf of the plaintiff that it could have been stopped in 400 or 500 feet.
The conductor of the train testified that he was in the rear car, and that the engineer whistled and put on the emergency brakes on the curve before reaching the straight track approaching the trestle. The track was straight for about 800 feet east of the point where Lang was struck. The engineer testified that he was two or three rail lengths west of the distance signal when he first saw Lang. A rail length is 33 feet. The distance signal was 780 feet from the point where Lang was struck; so, according to his testimony, Lang was about 700 feet from him when he saw him. He said he saw Lang when he came around the curve into the straight track. The fireman was busy shoveling coal, and did not see him at all at that time. The engineer testified that he at once set his emergency brakes and blew the alarm whistle; that Lang was at about the end of the viaduct, and got off the velocipede, and was trying to pull it from the track, when he was struck and killed. The fireman testified that, after the alarm was given, he looked out and saw Lang trying to pull the velocipede from the track when he was struck. On the other hand, the section hands who were working on the track a little below the trestle testified that no warning of the approach of the train was given until after Lang had been struck; and two persons walking east along the track, who passed Lang a short distance from the trestle, gave similar testimony.
It is insisted for the defendant that the court should have instructed the jury peremptorily to find for it; but we cannot concur in this conclusion. If a signal of the approach of the train had been given, Lang might have protected himself by jumping from the velocipede. The evidence for the plaintiff was that no warning of the approach of the train was given, and that Lang was struck when he was proceeding along in ignorance of the approach of a train behind him. In addition to this, there was evidence tending to show that the train might have been checked, if not stopped, in time to avert the catastrophe. While the witnesses who testified for the plaintiff did not know this engine or these cars, they had run other trains and were competent to testify as to the distance within which such a train could be stopped. The evidence shows that Lang was seen by the engineer when he came around the curve into the straight track, and, if he had whistled then, Lang could, at least, have jumped from the velocipede. It is true the testimony for the company is to the effect that the engineer did blow the whistle then, but the great weight of the evidence is to the effect that no whistle was blown until after Lang had been struck and the train was some feet west of the point at which the accident occurred.
The court gave the jury these instructions:
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