Cincinnati, N.O. & T.P.R. Co. v. Barber

• Decision Date: 07 June 1895
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. BARBER.
• Court: Kentucky Court of Appeals

31 S.W. 482

CINCINNATI, N. O. & T. P. RY. CO. v. BARBER.

Court of Appeals of Kentucky.

June 7, 1895

Appeal from circuit court, Jessamine county.

"Not to be officially reported."

Action by Julia A. Barber against the Cincinnati, New Orleans &amp Texas Pacific Railway Company to recover for the death of plaintiff's intestate. From a judgment for plaintiff defendant appeals. Affirmed.

For former case, see 21 S.W. 340.

C. B Simrall, for appellant.

R. J Breckenridge, Robert Harding, and Geo. R. Pryor, for appellee.

PRYOR J.

This is the second trial of this case. On the first trial the court below instructed for the defendant, and on an appeal it was held that the evidence of negligence was of such a character as required it to be passed on by the jury; and on this trial there was a verdict for $2,500. The evidence upon which the verdict is based differs but little if any from that found in the record of the first case. There was a motion made to exclude from the jury certain statements made by a witness as to the custom of the company with employés in giving signals of the approach of the train to those who were engaged as day laborers in repairing or improving the road. This witness had been in the employ of the railroad and professed to be familiar with the rules, or rather with the habit of those in charge of the hands in instructing them that such signals would be given, and, in fact, the testimony in the case conduces to show that those in charge of defendant's trains were in the habit of giving to the deceased, who had been working on the road for years, signals of the approach of the regular trains. The nature of the employment of the deceased seems to have been confined to getting up rock on one side of the road, and wheeling the rock in a wheelbarrow to the opposite side of the road. He used two planks, laid across the track, to enable him to get his rock from the east to the west side, and this work and mode of accomplishing it he had been engaged in for this road for a long time. On the day the accident happened resulting in his death, the regular train was a few minutes behind and running at the rate of 35 or 40 miles an hour. There was no signal given of the train's approach, and the deceased seems not to have been observed by any of the employés on the train until within 75 or 100 feet of where he stood, and then it became impossible for the train to be checked in time to save...