Cincinnati, N.O. & T.P. Ry. Co. v. Rodes

• Decision Date: 22 May 1907
• Citation: 102 S.W. 321
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. RODES.
• Court: Kentucky Court of Appeals

102 S.W. 321

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

Court of Appeals of Kentucky.

May 22, 1907

Appeal from Circuit Court, Mercer County.

"Not to be officially reported."

Action by J. W. Rodes against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

E. H Gaither and Jno. Galvin, for appellant.

Robert Harding, Rawlings & Voris, and Greene & Van Winkle, for appellee.

CARROLL C.

Appellee had received a car load of lumber on appellant's road at Burgin, Ky. and went there with a team for the purpose of unloading and hauling it away. The car was not placed at the usual point for unloading, and appellee protested against being required to unload it at the point where it was; but the station agent of appellant informed him that, as the switch engine had gone to High Bridge, he must unload the car where it stood. After receiving these directions, he proceeded to unload the car into the wagon to which his team of mules was hitched. Being notified by the watchman employed by appellant that a train was coming from the north on the track upon which the car was standing, appellee immediately started out of the yard, while the watchman flagged the train, and the engine stopped; but, before appellee could get out of the yard with his team, the engine was suddenly started, and only missed striking the wagon by a few feet the escaping steam and noise of the engine and train frightened the appellee's team of mules, and they ran off, throwing him to the ground and injuring him quite severely. The negligence complained of, as stated in the petition, was: "That at the invitation of defendant (appellant) he entered upon the depot grounds at the depot at Burgin, with his wagon and two mules attached thereto, for the purpose of receiving from the defendant certain lumber in its cars upon its tracks at said depot grounds, and for the purpose of loading same on his wagon and hauling it away; that an engine of the defendant approached near where he was thus engaged, making it necessary for him to move his team from the place it was standing, and while he was thus engaged the persons in charge of the engine carelessly and negligently ran it in such close proximity to his mules that they thereby became alarmed, frightened, and unmanageable, and ran away."

The evidence discloses that the watchman, recognizing the dangerous position plaintiff...