Conniff v. Louisville, H. & St. L. Ry. Co.

• Decision Date: 27 February 1907
• Citation: 124 Ky. 763,99 S.W. 1154
• Parties: CONNIFF v. LOUISVILLE, H. & ST. L. RY. CO.
• Court: Kentucky Court of Appeals

99 S.W. 1154

124 Ky. 763

CONNIFF v. LOUISVILLE, H. & ST. L. RY. CO.

Court of Appeals of Kentucky.

February 27, 1907

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Third Division.

"To be officially reported."

Action by Martin Conniff against the Louisville, Henderson & St Louis Railway Company. From a judgment for defendant plaintiff appeals. Affirmed.

Edwards & Ogden, for appellant.

Helm &amp Helm, for appellee.

CARROLL C.

Martin Conniff was injured in November, 1904, by one of the trains of appellee at the intersection of Fourteenth and Delaware streets, in Louisville, Ky. and from the injuries thus received died several months afterwards. Previous to his death he instituted this action to recover damages for injuries received. After his death it was revived in the name of his administratrix, and upon a trial the jury returned a verdict in favor of appellee. The sole ground upon which a reversal is sought is the alleged error of the court in instructing the jury.

Conniff had been in the employ of the company as a flagman for some 15 years, and had been stationed at Fourteenth and Delaware streets about three years. His duties were to warn persons attempting to cross Fourteenth street of the approach of trains to the Delaware street crossing, and also to light each night and take away each morning switch lamps on a switch a few feet south of the crossing. The passenger train by which he was struck was backing north on Fourteenth street; the engine being attached to the south end of the train. Standing on the front platform of the passenger car was a switchman in the employ of the company, whose duty it was in approaching a crossing to sound an air whistle that could be heard several hundred feet away, and in cases demanding it to apply an emergency brake and bring the train to a sudden stop. The evidence shows that the train when it struck Conniff was going three or four miles an hour, and that Horn, the switchman, was at his place of duty on the platform, and sounded the whistle in the usual manner as he approached Delaware street. He testified that he saw Conniff when the train was about 150 feet distant take the lamp off of the stand, step to the side of the track, in a place of safety, and walk north towards the crossing a few feet away and that just before he was struck by the steps of the passenger coach he left his place of safety by the side of the track, and walked close enough to the track to be struck. The court instructed the jury in substance that if the employés, or any of them, of appellee, in charge of the train, saw Conniff in a place of peril from the moving train, and apparently unconscious of his danger, it was their duty to exercise ordinary care by the use of all means under their control to avoid injuring him, and that if they failed to do so, and by reason of such failure Conniff sustained the injuries complained of, the law is for the plaintiff. Counsel for appellant asked the court to instruct the jury that it was the duty of those in charge of the train to exercise ordinary care to avoid injury to Conniff, and to keep a lookout and give the usual...