Chesapeake & O. Ry. Co. v. Booth

• Citation: 148 S.W. 61,149 Ky. 245
• Parties: CHESAPEAKE & O. RY. CO. v. BOOTH. d
• Decision Date: 21 June 1912
• Court: Court of Appeals of Kentucky

148 S.W. 61

149 Ky. 245

CHESAPEAKE & O. RY. CO. v. BOOTH. d

Court of Appeals of Kentucky.

June 21, 1912

Appeal from Circuit Court, Fayette County.

Action by Charles F. Booth against the Chesapeake & Ohio Railway Company and others. From judgment for plaintiff, defendant railway company appeals. Affirmed.

Shelby & Shelby, of Lexington, for appellant.

Allen &amp Duncan, of Lexington, for appellee.

SETTLE J.

About 2:30 o'clock a. m. on November 9, 1907, the appellee Chas. F. Booth, was run down by a freight train of the appellant, Chesapeake & Ohio Railway Company, while he was walking along Water street in the rear of the Palace Hotel city of Lexington, and both of his feet mangled and cut off by the wheels of the engine, necessitating the amputation of both legs above the ankle joint. His left thigh was also badly broken causing an appreciable shortening of that limb. This action was instituted by him against appellant, its engineer, A. S. Lewis, and brakeman, Eugene Young, to recover damages for these injuries, alleged to have been caused by their joint negligence. The answer of the appellant, engineer, and brakeman, denied that appellee's injuries were caused by their negligence, or that of any of them, and averred contributory negligence on the part of appellee but for which the injuries would not have been received. There were two trials of the case. On the first trial the verdict of the jury awarded the appellee $15,000 damages. The judgment on this verdict was set aside and a new trial granted by the circuit court, because of error in the instructions. On the second trial the jury returned a verdict in appellee's favor against the appellant, Chesapeake & Ohio Railway Company, for $12,500, but rendered no verdict as to the engineer, Arthur S. Lewis. During the first trial the circuit court gave a peremptory instruction as to Eugene Young, the brakeman, and by the judgment rendered appellee's petition as to him was dismissed. Following the return of the verdict against the Chesapeake & Ohio Railway Company, on the last trial, the circuit court on motion of the engineer, Arthur S. Lewis, treated the jury's verdict as a finding for him and entered judgment accordingly. After judgment was entered in appellee's favor against the Chesapeake & Ohio Railway Company, upon the verdict returned against the latter, it entered a motion and filed grounds for a new trial; but the motion was overruled, and from that judgment it has appealed. Appellee has filed a cross appeal from the judgment dismissing his action as to brakeman Young, and also from the judgment dismissing it as to the engineer, Lewis.

In order to give an understanding of the place of the accident, it will be necessary to state that it occurred on Water street in the rear of the Palace Hotel, at a point where the porch of a negro restaurant stands at a distance of from four to nine feet from one of the numerous railroad tracks located on Water street, which street runs east and west through Lexington and is largely given over to railroad uses; being, in fact, the highway through the whole length of which run the Chesapeake & Ohio Railway tracks and those of the Louisville & Nashville Railroad, going to both Louisville and Cincinnati. As trains pass through this street in coming from the west, they cross, amongst other streets, Broadway, Mill, Upper, and Limestone, in the order named. The railroad track nearest the restaurant curves somewhat west of and in front of that building, so that the south rail is considerably closer to the eastern end of the building than at the western end thereof. Water street, from its intersection with Limestone to a point well beyond the restaurant, is fairly well lighted.

Just before receiving his injuries, appellee left the Palace Hotel through a side door opening on Water street, and upon reaching that street, started, as he testified, to go to the Union Station for the purpose of getting information as to the time of trains running from Frankfort to Cincinnati. He had proceeded along Water street to a point at the east end of the restaurant porch, when he was struck and injured by some part of appellant's freight train known as second 98, which had come from Louisville and was passing east through Lexington. This train consisted of 22 cars, 15 loaded and 7 empty, besides the engine, tender, and caboose. The regular arriving time of No. 98 at Lexington seems to be about 12:50 a. m., but it was running in two sections that night, and the second section did not pass through Lexington until about 2:30 a. m. The engineer, Lewis, and a fireman, named Stull, were in the cab. The front brakeman, Young, was riding on the pilot of the engine watching the switches in order that he might, if necessary, jump off and change them without having the train to stop. The conductor and rear brakeman were in the caboose at the rear of the train. It appears that appellant's servants on the train claimed not to have learned of the accident until the next morning, and the appellee himself was unable to give any clear account of how it occurred other than to say that as he was walking along something struck him about the hip or middle of the body, knocking him down, following which he realized that the train was passing over his legs.

The engineer and fireman were both introduced as witnesses on the two trials of the case; but the front brakeman, Young, though sued with the appellant and the engineer, did not testify on the last trial, as he left the service of the appellant after the first trial, and it was claimed by the latter that his place of residence was unknown to it.

It was intimated in argument by appellant's counsel that appellee was intoxicated at the time of receiving his injuries, and that the same were due to that fact; but while it appeared from the evidence that he had taken during the night drinks at several saloons, one at a negro bawdy house, and that he had a bottle of whisky in his pocket when struck by the train, the evidence stopped short of showing him to have been drunk. He testified that he did not see or hear the train when or before it struck him, and that it gave no signal of its approach, either by the ringing of the engine bell or the blowing of its whistle; that when he stepped from the Palace Hotel into Water street he looked both ways to see if a train was approaching, and, seeing none, he then turned and walked west along the south rail of the track until he was struck. Appellee also testified that his reason for selecting the way indicated was because the ground was smoother and the walking better than elsewhere on that part of Water street. His collision with the train occurred about 190 feet from where he entered Water street upon leaving the Palace Hotel, and at a point where the space between the first iron post in front of the restaurant and the curving track was only 4 feet 3 inches; and, as the cylinder of the engine was shown to project about 29 inches from its body, there was left a space of 1 foot 9 inches between the engine and the post of the porch. In this narrow and manifestly dangerous place, appellee was caught by the passing engine. Water street, at and contiguous to the point of the accident, was, as appellant's trainmen knew, constantly used by pedestrians and vehicles, and therefore a place where the presence of persons might reasonably be expected at any time day or night. Warren and Braxton, two of appellee's witnesses, testified: That they were at the time of the accident employed in the Navarre saloon, at the corner of Water and Limestone streets; the former being the night bartender and the latter the janitor or waiting man in the saloon. That the saloon was open, and they were awake and heard the train by which appellee was injured pass, and observed that it gave no signal either by ringing its bell or blowing its whistle. Warren's experience of four years as express messenger on railroads enabled him to speak with evident understanding of the operation of trains. It is clear that appellee was struck by the pilot beam or cylinder of the engine and his feet and legs thrown on the track, because his body was seen lying on the ground by engineer Lewis, from his cab window as it passed him; but Lewis, thinking that Young had fallen from the pilot, called to his fireman to know if Young was still on the pilot, and, being assured that he was, assumed he had been mistaken in thinking he saw a body on the ground and therefore pursued the inquiry no farther. It would seem that Young, from his position on the pilot, must have seen appellee as the pilot passed him; but, as he did not testify, it cannot actually be known what knowledge he had on the subject.

It does not appear from the testimony of appellee, or any of his witnesses, that he, in the matter of receiving his injuries, was guilty of contributory negligence; nor was such contributory negligence shown by the evidence introduced in appellant's behalf. Negligence, either on the part of the person injured or the person or corporation inflicting the injury, will not be presumed, but must be directly proved, or facts shown from which it can properly be inferred. Early's Adm'r v. L. H. & St. L. Ry. Co., 115 Ky. 13, 72 S.W. 348, 24 Ky. Law Rep. 1807.

In view of this well-known rule and the absence of any evidence of contributory negligence on the part of appellee, it is manifest that the circuit court did not, as claimed by appellant, err in refusing the peremptory instruction asked by it on the ground that appellee was guilty of contributory negligence.

When introduced as witnesses in appellant's behalf, engineer Lewis and fireman Stull testified that the former at the time of the accident occupied the engineer's seat next to the cab...