Chesapeake & Ohio R. R. Co. v. Dixon's Admx.

• Court: Kentucky Court of Appeals
• Writing for the Court: Lewis
• Citation: Chesapeake & Ohio R. R. Co. v. Dixon's Admx., 104 Ky. 608, 47 S. W. 615 (Ky. Ct. App. 1898)
• Decision Date: 28 October 1898
• Parties: Chesapeake & Ohio R. R. Co. v. Dixon's Administratrix.

104 Ky. 608

Chesapeake & Ohio R. R. Co. v. Dixon's Administratrix.

Court of Appeals of Kentucky.

October 28, 1898.

APPEAL FROM BOYD CIRCUIT COURT.

WADSWORTH & COCHRAN FOR APPELLEE.

W. H. WADSWORTH IN SEPARATE BRIEF FOR APPELLANT.

J. A. SCOTT FOR APPELLEE. (JOHN F. HAGER AND R. S. DINKLE OF COUNSEL.)

J. A. SCOTT FOR APPELLEE IN RESPONSE TO A PETITION FOR A REHEARING.

CHIEF JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT.

This action was brought by Lucy Dixon, administratrix of Alexander Dixon, against the Chesapeake & Ohio Railway Company, owner, and R. H. Chalkey and William Sidles, engineer and fireman, of a railroad train, by collision with which plaintiff's intestate was killed. The killing occurred on the crossing of the Chesapeake & Ohio Railroad, leading from Catlettsburg to Ashland, by a turnpike road extending from one to the other of the two cities, and being the only public highway from Catlettsburg to Ashland. The place of said crossing is within the corporate limits of Catlettsburg, and very much used by persons in vehicles and on foot; the proof showing that as many as five hundred or more persons cross there each day. Parallel to, and about eight feet from, the Chesapeake & Ohio Railroad track, is the track of the Ohio & Big Sandy Railroad, likewise crossed by the same highway. The evidence shows that at the time of the occurrence the deceased, Alexander Dixon, who was about seventy years of age, was going on foot from Catlettsburg, westward, to his home, near Ashland. The train which killed him (being a passenger train) was going in the same direction. According to the evidence of eye-witnesses, he had crossed the track of the Ohio & Big Sandy Railroad, and was near to, and about to or had put his foot upon, the track of the Chesapeake & Ohio Railroad, when, his attention being apparently attracted, he looked up the track towards Catlettsburg; but seeing nothing, nor being able to see any object on the track at a greater distance than six hundred or seven hundred feet, on account of a curve in the track and intervening houses, he turned and looked westward along the track, about which time he was struck by the train. The train, which was fifteen minutes late, was running, according to the testimony of the engineer, fifteen to twenty miles, and, according to the testimony of others, between thirty and forty miles, per hour. He was struck with such force as to knock his body eight or ten feet in the air, and drive it bounding seventy-three feet, measured. According to the testimony of the engineer, when he first discovered him, Dixon was between the tracks of the Chesapeake & Ohio Railroad and the Ohio & Big Sandy Railroad; that he immediately gave the alarm signal, by short, sharp blasts of the whistle, and put the air brake on, and immediately Dixon looked in the direction of the approaching train, whereupon he released the air brakes, supposing Dixon would get out of danger. But other witnesses testify that the air brake was not put on until after Dixon was struck. The engineer and trainmen testified that a signal, by blowing the whistle, of the approach of the train to the crossing was made at the usual place, and they were corroborated by others not connected with the train; while others, who were near to the whistling post, and whose attention was given to the passing train, testify that there was no whistle until the train had approached very near to the crossing, when there were several short, sharp blasts of the...