Chesapeake & O. Ry. Co. v. Pace

• Decision Date: 29 January 1908
• Parties: CHESAPEAKE & O. RY. CO. v. PACE.
• Court: Kentucky Court of Appeals

106 S.W. 1176

CHESAPEAKE & O. RY. CO. v. PACE.

Court of Appeals of Kentucky.

January 29, 1908

Appeal from Circuit Court, Floyd County.

"Not to be officially reported."

Action by W. H. Pace against the Chesapeake & Ohio Railway Company for injuries received at a crossing. From a judgment for plaintiff, defendant appeals. Affirmed.

Walter S. Harkins, for appellant.

Brown &amp Martin and W. Lee Roberts, for appellee.

CARROLL J.

The Big Sandy Division of the Chesapeake & Ohio Railway runs parallel with the Big Sandy river and follows its meanders. At a point immediately below Abbott's creek the county road, which runs parallel with the railroad and between it and the river crosses the river and the railroad track. On the occasion complained of by appellee, he was driving along this road towards the crossing at Abbott's creek, and when within about 75 or 100 yards of the crossing the team he was driving became frightened at a freight train going in the same direction he was driving. Becoming unmanageable, the team ran off, and at the crossing the engine collided with the wagon injuring appellee quite severely. To recover damages for the injury thus sustained this action was brought. Upon a trial before a jury, appellee recovered $200 in damages.

The instructions are not in the record. The pleadings are sufficient to support the verdict; so that the only question before us is whether or not the peremptory instruction requested by appellant should have been granted. There is evidence conducing to show that the persons on the engine saw appellee's team when it became unmanageable, and knew, or in the exercise of ordinary care could have known, that the team was beyond the control of appellee and was running towards the crossing. There is also some evidence that after the persons in charge of the engine knew, or by the exercise of ordinary care could have known, that appellee's team would reach the crossing about the time the engine did, and after discovering the facts mentioned and the peril in which appellee was placed they could by the exercise of ordinary care have stopped the train, thus avoiding the collision. There was evidence sufficient to take the case to the jury, and the presumption is that they were properly instructed. If the persons in charge of the engine saw, or by the exercise of ordinary care could have seen and known, that the team appellee was driving was unmanageable and...