Connell v. Chesapeake & O. Ry. Co.

• Decision Date: 19 September 1900
• Citation: 58 S.W. 374
• Parties: CONNELL v. CHESAPEAKE & O. RY. CO. [1]
• Court: Kentucky Court of Appeals

58 S.W. 374

CONNELL v. CHESAPEAKE & O. RY. CO. ^[1]

Court of Appeals of Kentucky.

September 19, 1900

Appeal from circuit court, Lewis county.

"Not to be officially reported."

Action by Daniel Connell against the Chesapeake & Ohio Railway Company to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

Samuel J. Pugh, for appellant.

Wadsworth & Cochran, for appellee.

HOBSON J.

Appellant while walking along the ends of the ties of appellee's railway, in Vanceburg, Ky. was struck by a train coming up behind him, and seriously injured. He filed this action to recover therefor, and, at the conclusion of the testimony offered by him, the court below peremptorily instructed the jury to find for appellee.

Appellant offered to show on the trial that the place where he was injured was within the corporate limits of the city; that the track there for more than five years had been constantly and notoriously used as a public footway, by the acquiescence and permission of appellee; that several hundred persons daily used it; that houses were built fronting on the railway, and that the track was the only means for the occupants of the houses for ingress and egress, and was the usual and customary way for public travel from the eastern to the western part of the city. The appellee objected to this evidence, and it was excluded by the court. This was error. Under this testimony, and the other facts shown in the case the locality was such (being in the heart of the city) that warning of the approach of the train should have been given where the presence of persons on the track must necessarily have been anticipated. Shelby's Adm'r v. Railroad Co., 85 Ky. 224, 3 S.W. 157; Conley's Adm'r v. Railway Co., 89 Ky. 402, 12 S.W. 764. According to the proof for appellant, he was going home, walking along the end of the ties, when the passenger train approached him in the rear. The fireman was not in the cab, or at least not in sight, and was probably shoveling coal into the engine. The engineer turned around on his seat, and was waving to some one on the hill with his handkerchief. Neither the whistle was blown, nor the bell rung, nor any signal of the approach of the train given, until just as it struck appellant. The train had run for something like 600 feet up one of the streets of the town, and was then going diagonally across to another street, when it struck appellant...