Chesapeake & O. Ry. Co. v. Johns' Adm'x

• Decision Date: 14 October 1913
• Parties: CHESAPEAKE & O. RY. CO. v. JOHNS' ADM'X.
• Court: Kentucky Court of Appeals

159 S.W. 822

155 Ky. 264

CHESAPEAKE & O. RY. CO. v. JOHNS' ADM'X.

Court of Appeals of Kentucky.

October 14, 1913

Appeal from Circuit Court, Shelby County.

Action by Thomas J. Johns' Administratrix against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

Willis Todd & Bond, of Shelbyville, Shelby & Shelby, of Lexington O'Rear & Williams, of Frankfort, and C. R. McDowell, of Danville, for appellant.

Robt. B. Franklin and Robt. C. Talbott, both of Lexington, and Ralph Gilbert, of Shelbyville, for appellee.

TURNER J.

The Chesapeake & Ohio Railway Company, under a contract with the Louisville & Nashville Railroad Company uses jointly with the latter its railroad tracks running from Lexington to Louisville. On the afternoon of January 16, 1912, a regular Louisville & Nashville passenger train, bound from Lexington to Louisville, and a special or "dead train" of the Chesapeake & Ohio Railway Company, bound from Louisville to Lexington, met in a collision at a point in Shelby county. The Louisville & Nashville train was a regular passenger train, had the right of track, and was running practically on time, being at the time of the collision about two minutes late; the Chesapeake & Ohio train was a special or "dead train," consisting of the engine and two coaches carrying only a crew. The engineer and fireman on each train were killed, and this suit was instituted by appellee as personal representative of decedent, who was fireman on the Louisville & Nashville train, against both defendants, charging that her intestate came to his death by the gross and concurrent negligence of the two defendants. After the introduction of all evidence in the circuit court, the action was dismissed as to the Louisville & Nashville Railroad Company without prejudice, and without objection upon the part of appellant. The jury found a verdict for $25,000 for the plaintiff against the Chesapeake & Ohio Railway Company, upon which judgment was rendered, and the company appeals.

The uncontradicted facts as given by the conductor of the Louisville & Nashville train, the train dispatcher, and the telegraph operator at Anchorage, are: The Louisville & Nashville train was a first-class passenger train and had the right of the track, being at the time of the collision only two minutes late, which is regarded by railroad men as "on time." The Chesapeake & Ohio train was a "dead train," running as a freight, and it was its duty to keep the track clear for regular trains at all times--that is, to take a side track or switch in time to clear the track at least five minutes before the schedule time of the regular train--that at Anchorage, a few miles nearer Louisville, the Chesapeake & Ohio trainmen had received orders about the movements of certain trains, and both the conductor and engineer of that train had been there told that No. 15, the regular Louisville & Nashville passenger train with which it collided was on time and came by the way of Shelbyville, which was the same track the Chesapeake & Ohio train was going on from Anchorage; that between Anchorage and the point of collision the Chesapeake & Ohio train had three opportunities to side-track for the Louisville & Nashville train; that at the time of the collision the Chesapeake & Ohio train had been for five minutes running on the schedule time of the regular Louisville & Nashville train; that under the rules it was the duty of the Chesapeake & Ohio train to have gone in on the side track at Eastwood, the second side track out of Anchorage. Appellant declined to introduce any evidence, although it appears that the conductor, who was on the Chesapeake & Ohio train at the time of the collision, and was present when notice was given at Anchorage that No. 15 was on time and came by the way of Shelbyville, was still living. Appellant relies upon three reasons for reversal: (1) That it was erroneous to authorize a recovery for punitive damages; that to authorize such recovery there must be knowledge by the tort-feasor or his principal that his act or omission to act was wrongful; that is, the injury must have been intentionally inflicted or caused by such careless conduct as indicated an intentional disregard of the safety or the rights of others. (2) That it was the duty of the court to have directed the jury by instruction to separate in its verdict the exemplary and compensatory damages, without request from either party. (3) The damages were grossly excessive.

The argument is that, there being no direct evidence that the conductor or engineer of the Chesapeake & Ohio train knew that the Louisville & Nashville train, which formerly went to Louisville from Lexington by a different route, was on the day in question going to Louisville over the track upon which it (the Chesapeake & Ohio train) was traveling, that they did not therefore know at the time of the collision that they were running on the time of that train, and that, not knowing the facts, there was no intentional wrongdoing which authorized the assessment of exemplary damages. But the uncontradicted evidence is that the Louisville & Nashville train had been taking that route to Louisville for six or eight months at the time of the collision, and that the Chesapeake & Ohio engineer had been all that time running a freight train over that road, and that both the conductor and engineer had been, shortly before, notified, not only that No. 15 was on time, but was coming by the way of Shelbyville over the same track the Chesapeake & Ohio train was going. It is true that under the facts of this case it is hard to reconcile the knowledge of the Chesapeake & Ohio engineer that he was running on the time of the Louisville & Nashville train with the fact that at the same time he was rushing headlong to his own death. But the facts are in the record and cannot be evaded; not only are the trainmen positively presumed to have known the schedule time of all trains on the road, not only are they presumed to have the schedule before them at all times, but in this case we have the uncontradicted testimony that a few short moments before the collision both the conductor and...