Cincinnati, N.O. & T.P. Ry. Co. v. Swan's Adm'x

• Decision Date: 18 June 1912
• Citation: 149 Ky. 141,147 S.W. 889
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. SWAN'S ADM'X.
• Court: Kentucky Court of Appeals

147 S.W. 889

149 Ky. 141

CINCINNATI, N. O. & T. P. RY. CO. v. SWAN'S ADM'X.

Court of Appeals of Kentucky.

June 18, 1912

Appeal from Circuit Court, Boyle County.

Action by M. B. Swan's administratrix against the Cincinnati New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Nunn J., dissenting.

Chas H. Rodes, George E. Stone, and Nelson D. Rodes, all of Danville, and John Galvin, of Cincinnati, Ohio, for appellant.

Robt. Harding, E. V. Puryear, and John W. Rawlings, all of Danville, for appellee.

HOBSON C.J.

Mat Swan was in the service of the railroad company as the foreman of a gang of men who were putting in two water columns near the railroad tracks at Williamstown. The north column was about 100 yards from the south column, each being by the side of the main track. East of the main track was a passing track, and in addition to this was what is known as the storage track. The passing track was about a mile long and was used for the passing of trains; that is, a train would go on this track to allow another train to pass it. A fast train, known as the "Carolina Special," was due at Williamstown at 8:22 a. m. It did not stop there but passed at that point, the morning accommodation going south.

On the morning in question the accommodation train arrived from the north on time and took the passing track. It pulled down on the passing track to the depot, and there let off its passengers. It then started on the passing track and pulled down to the southern end of this track. Swan was at the north water column supervising the work about the time this train pulled in, and, after spending some minutes there, went down to the south water column walking along the main track. When he got to the south water column, he remained standing on the track, looking over into the pit the men were digging for the base of the water column. While he was standing there, the accommodation train was pulling southward on the passing track. Just south of him both tracks curved a little to the east. The wind was blowing so as to cause the smoke from the accommodation train to blow down on the main track. While the accommodation train was pulling down on the passing track the Carolina Special came rapidly around the curve, and before Swan was aware of its approach, or the engineer had perceived him, it was so close to him that it struck him before he could get off the track. He was instantly killed, and this action was brought by his personal representative against the railroad company to recover for his death. The proof for the plaintiff on the trial showed that the Carolina Special was running very rapidly, say 40 miles an hour, and it tended to show that no signal of its coming was given. The proof for the defendant was that it was running about 25 miles an hour and that it gave the usual signals by blowing the whistle as it approached. It was a part of Swan's duty as foreman of the gang to keep the tracks clear for passing trains. In the work they were doing they used wheelbarrows or timbers from time to time across the track, and it was a part of his duty to know the time of trains and to see that the tracks were clear. He had charge of the work, and it was incumbent upon him to so conduct the work as not to endanger the trains. To this end he was furnished a time card. The Carolina Special was due at 8:22, and it arrived at 8:25.

On these facts the court instructed the jury as follows "No. 1. You are instructed that it was the duty of those in charge of the defendant company's train to give reasonable and timely notice, by ringing its bell and sounding its engine whistle, in coming to the place where the deceased Mat Swan was located at the time he was killed, and to have said train under such control as would enable the operators of it to stop in case of necessity, and if you believe from the evidence that the defendants negligently failed to give timely and reasonable notice of the approach of said train to said Swan, or negligently ran same at such a rate of speed as not to have same under control, and because of one or the other of these failures of duty the deceased did not know of the approach of said train in time to avoid being struck by same, and was thereby killed, and he was at the time on said track at a time and place where he was required by the defendant company to be discharging the duties required of him, and in doing so was in the exercise of ordinary care for his own safety, you will find for the plaintiff; and, if you do not so believe, you will find for the defendants. No. 2. You are instructed that, if the jury shall believe from the evidence that the deceased Swan had notice of the time of the approach of defendants' train No. 14, then it was his duty to keep a lookout for said train and exercise ordinary care in his movements so as to keep in a place of safety, and if the jury shall further believe from the evidence that deceased, having notice of the time of the approach of same, and that he failed to keep a lookout for the approach of said train, or failed to keep himself in a place of safety, then they shall find for defendants. No. 3. ...