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

• Decision Date: 07 June 1907
• Citation: 102 S.W. 888
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. REYNOLDS' ADM'R.
• Court: Kentucky Court of Appeals

102 S.W. 888

CINCINNATI, N. O. & T. P. RY. CO. v. REYNOLDS' ADM'R.

Court of Appeals of Kentucky.

June 7, 1907

Nunn J., dissenting.

Appeal from Circuit Court, Lincoln County.

"Not to be officially reported."

Action by B. Reynolds' administrator against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John Calvin and J. W. Alcorn, for appellant.

Robert Harding and Greene & Van Winkle, for appellee.

BARKER J.

This action was instituted in the Lincoln circuit court to recover damages for the alleged negligent killing of B. Reynolds. The facts are these: Reynolds was a fireman in the employ of the appellant corporation. On the day he was killed he was in charge of a "dead" engine which constituted part of a train of cars being hauled south over appellant's line. When the train reached a point in Pulaski county, Ky. called in the record "Patton water tank," it stopped for the purpose of supplying two "live" engines, which were hauling the train, with water. After the train started Reynolds for some reason dismounted to the ground, allowed one or two cars to pass, and then undertook to board the moving train by grasping the ladders on the outside of the freight cars; but in this he was unsuccessful, for each time he attempted to board the car he was "slung off," and finally desisted, and the train passed on and left him at the water tank. There is some reason to suppose that he was hurt by the attempt to board the train, but how, or to what extent, does not appear. After the train passed him and went on its way south, he walked in the direction it was going for 100 or 150 feet, and then sat down on the cross-ties and leaned over with one arm across the rail, so that he was lying in a reclining position with his back toward the north. This very unusual action on his part is unexplained by the evidence, and whether he was dazed or insane, or intoxicated can only be a matter of surmise; but certain it is that he remained in that position for about a half an hour, when a heavy train going south knocked him off the track inflicting injuries from which he shortly died. The trial of the case by a jury resulted in a verdict of $5,000 in favor of the appellee, of which the appellant corporation is now complaining.

The evidence clearly showed that those in charge of the front engine of the train which killed Reynolds saw an object on the track about a half mile distant but that they did not know the object was a human being until they had approached so close to him that it was thereafter impossible to stop the train in time to save his life. Reynolds was evidently unconscious from some cause, for, although the bell was rung and the whistle blown for a considerable distance before the train reached him, he made no movement whatever, and, so far as this record discloses, he never realized his danger. It is also shown that after the engineer discovered that the object on the track was a man he did everything that was possible to be done to stop the train; and the material question in this case is whether or not appellant's employés were bound to discover, or know, that the object on the track was a man at the time they could see that there was an object on the track.

A. K Singleton, who was the fireman on the engine which inflicted the injuries on Reynolds, was called as a witness for the plaintiff. He testified that they first saw the object on the track as the engine came over the hill a half mile away; that they could see an object, but could not tell what it was; that the train was a long, heavily-loaded one, drawn by two engines, and they were coming down-grade at the time of the accident. He states that they rang the bell and blew the whistle for quite a distance before they reached Reynolds, and that he did not move in any way, or show that he heard it. On cross-examination the witness was asked: "Q. How near were you to Mr. Reynolds when you first discovered it was a man sitting on the cross-ties? A. To the best of my knowledge 50 or 75 feet. Q. Why was it, when you first saw it, you could not tell whether the object was a man, stock, or log? A. Owing to the position he was in. I could not see his hands or arms--that is, to tell what it was--nor his feet nor his head." Unless the defendant corporation was bound to discover that the object which was seen on the track a half mile away was a man, clearly it was entitled to a peremptory instruction, because it is not contended that, after the object was ascertained to be a man, the employés of the appellant failed in any duty which they owed him in his perilous position. On the contrary, it is clearly established by the evidence for the plaintiff that everything that could be done to save the life of Reynolds after those in charge of the engine knew certainly that the object on the track was a man was done.

It seems to us that the facts of this case bring it within the principle laid down in L., H. & St. L. R. R. Co. v Hathaway's Exec'x, 89 S.W. 724, 2 L. R. A. (N. S.) 498, 28 Ky. Law Rep. 628; Goodman's Adm'r v. L. & N. R. R. Co., 116 Ky. 900, 77 S.W. 174, 63 L. R. A. 657; Early's Adm'r v. L., H. & St. L. R. R. Co., 115 Ky. 13, 72 S.W. 348; L., H. & St. L. R. R. Co. v. Jolly's Adm'x, 90 S.W. 977, 28 Ky. Law Rep. 989. Reynolds, while in the employ of the defendant corporation, was not in the discharge of any duty he owed his employer at the time he was hurt; nor was he at a place where any duty imposed upon him required his presence. On the contrary, he had walked to a point on the defendant's track where neither he...