Cincinnati, N.O. & T.P. Ry. Co. v. Winningham's Adm'r

• Decision Date: 16 December 1913
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. WINNINGHAM'S ADM'R. [49]
• Court: Kentucky Court of Appeals

161 S.W. 506

156 Ky. 434

CINCINNATI, N. O. & T. P. RY. CO. v. WINNINGHAM'S ADM'R. ^[49]

Court of Appeals of Kentucky.

December 16, 1913

Appeal from Circuit Court, Pulaski County.

Action by W. B. Winningham's Administrator against the Cincinnati, New Orleans & Texas Pacific Railway Company and another. From a judgment for plaintiff, defendant railway company appeals. Affirmed.

O. H Waddle & Son, of Somerset, and John Galvin, of Cincinnati Ohio, for appellant.

Robert Harding, of Danville, and R. B. Waddle, of Somerset, for appellee.

CLAY C.

In this action for damages against the Cincinnati, New Orleans &amp Texas Pacific Railway Company and H. E. Briton, plaintiff, J L. Wright, as administrator of W. B. Winningham, recovered a verdict and judgment for $5,000. The railroad company appeals.

The facts are as follows: The Indian Creek Coal Company had permission and authority from the railroad to build a tipple across its tracks at a point near Indian Head in McCreary county. The specifications for the work were furnished by the railroad company. The tipple was located about 10 feet from the center of the track on one side, and about 20 feet from the center of the track on the other side. It was to extend across the track at an elevation of about 30 feet above the track. At the time of the accident complained of employés of the coal company had been engaged for about a week and a half in the work of constructing the tipple. Five men were regularly employed, and when it was necessary to raise the uprights as many as 15 or 20 men would then be employed. When Winningham was killed the work of connecting the two sides across the track had not been begun. In doing the work the men frequently passed from one side of the track to the other. About 800 or 900 feet north of the point where the tipple was being constructed is a private road crossing, and south of the tipple 500 or 600 feet is a public road crossing. Just prior to the time he was injured, Winningham, who was one of the employés of the coal company, crossed the railroad track from the east to the west side, and had gone up the embankment on the west side for the purpose of getting some nails. The embankment begins to rise about 10 feet from the track. As Winningham returned he walked towards the track, looking straight in front of him. On account of the embankment it was impossible for Winningham to see further than 40 or 50 feet up the track, and it was likewise impossible for the engineer in charge of the train to see him until he got nearly on the track. When Winningham reached the track he was struck and killed by a south-bound train. According to plaintiff's evidence the train was running about 40 or 50 miles an hour, according to defendant's evidence, from 15 to 20 miles an hour. When the engineer discovered Winningham he applied the brakes in emergency with one hand, and grabbed for the whistle cord with the other, but missed it. By that time Winningham was struck. The train was stopped in about 20 car lengths. As the train came towards the tipple no warning of its approach was given. The engineer had not been over the road since the construction of the tipple began, and did not know that it was in process of erection.

The court in its instructions told the jury, in substance, that it was the duty of defendant, in approaching the place where Winningham was killed, to use ordinary care to give him timely and reasonable warning of the approach of the train by ringing the engine bell, or sounding the whistle, and that if they believed from the evidence that those in charge of the engine failed to give such warning, and by reason thereof Winningham, while using ordinary care for his own safety, went upon the track and was killed by the train, they should find for the plaintiff, and unless they so believed they should find for the defendant. Other instructions defining ordinary care and the measure of damages, and covering the question of contributory negligence, were also given.

The railroad...