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

• Decision Date: 10 December 1940
• Parties: CINCINNATI, N.O. & T. P. RY. CO. v. KING'S ADM'X.
• Court: Kentucky Court of Appeals

145 S.W.2d 1053

284 Ky. 694

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

Court of Appeals of Kentucky

December 10, 1940

Appeal from Circuit Court, McCreary County; Flem D. Sampson, Judge.

Action by Nannie Bell King, as administratrix of the estate of Tun King, deceased, against the Cincinnati, New Orleans & Texas Pacific Railway Company, for death of plaintiff's intestate resulting when run over by defendant's freight train. From a judgment for the plaintiff, defendant appeals.

Reversed with directions.

Tye Siler, Gillis & Siler, of Williamsburg, and M. L. Galvin and Carl M. Jacobs, both of Cincinnati, Ohio, for appellant.

A. M Caddell, J. C. Bird, and Pope & Upton, all of Williamsburg for appellee.

CAMMACK Justice.

Tun King, age 44, was run over and killed by one of the appellant's double-header freight trains around 6:30 a.m., Sunday, July 18, 1937. He was lying on the track in a drunken condition at the time he met his death. King's wife qualified as his administratrix and brought this action seeking to recover $2,900, alleging that the Railway Company had negligently caused her husband's death. The trial resulted in a verdict for $2,500 in Mrs. King's favor. This appeal is being prosecuted from the judgment on that verdict.

The train, consisting of 41 cars, was going about 45 miles an hour. Three members of the train crew, the engineer and fireman on the first engine, and the fireman on the second engine, testified that as the train rounded a curve some 1,300 to 1,400 feet from where King's body was found, they saw an object on the track and that they watched it until it passed out of their view and was run over. The track was straight, with a slight dip in it. The day was clear, though there was some evidence that it was a little hazy, and that the track was shaded at the place where King was lying. As to what the object was thought to be, there was the not uncommon speculation in such cases of it looked like "a big bulk humped up," "a dead calf," "a sheep or dog," "a piece of brown paper," or "a meal sack."

As to the discovery of King's peril, that is, when the object was thought to be a man, the record presents the following testimony: The fireman on the first engine testified that when they were within 500 feet of the object, "I seen it was a man's leg drawing up in the track. He had one leg drawn up. I hallooed at the engineer it was a man and he shut the engine off, applied the brakes." This witness testified further that he thought the engineer heard him, because as he hallooed it was a man, the engineer shut off the engine and applied the brakes. The engineer testified that he watched the object continuously after coming around the curve and that he did not get any signal from the fireman. In answer to the question as to what he did from the time the train came around the curve until it passed over the object, he said:

"I saw this bulk, we could not tell what it was. The first thing I saw that could be told what anything was was a dog; we were in about 500 feet to tell really what it was. By the time I went through my operations of the engine to stop it my engine had passed over it.

"Q. 55. When you were 500 feet from the object could you then tell it was a man? A. Yes, sir. It was a bulk of some kind. I could not tell it was a man but it was a bulk. I didn't know it was a man until after they came back and told me."

The dog referred to was standing by King. The train did not stop until it had gone some 1,500 feet beyond where King was lying on the track. The engineer testified that the train could not have been stopped within 500 feet and that he did everything he could have done to stop it. The engineer on the second engine testified on direct examination that the train ought to have been stopped in 100 to 150 yards.

The foregoing statement as to how King met his death does not represent a summary of all the evidence offered, nor has it been presented in the light of the chief question urged for reversal by appellant, namely, that it was entitled to a peremptory instruction. The reason...