Davis v. Crawford's Adm'x

• Decision Date: 06 May 1924
• Citation: 203 Ky. 71,261 S.W. 835
• Parties: DAVIS, DIRECTOR GENERAL OF RAILROADS, v. CRAWFORD'S ADM'X.
• Court: Kentucky Court of Appeals

261 S.W. 835

203 Ky. 71

DAVIS, DIRECTOR GENERAL OF RAILROADS, v. CRAWFORD'S ADM'X.

Court of Appeals of Kentucky.

May 6, 1924

Appeal from Circuit Court, Breathitt County.

Action by D. Boone Crawford's administratrix against James C Davis, Director General of Railroads. Judgment for plaintiff and defendant appeals. Reversed and remanded.

B. D Warfield, of Louisville, O. H. Pollard, of Jackson, and Charles S. Landrum and Hunt, Northcutt & Bush, all of Lexington, for appellant.

Kash &amp Bach, of Jackson, and J. Mott McDaniel, of Beattyville, for appellee.

SANDIDGE C.

This is an appeal by James C. Davis, Director General of Railroads, as agent under section 206 of the Transportation Act (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc), from a judgment for $3,000 rendered against him by the Breathitt circuit court in favor of Armelda Crawford, administratrix of the estate of D. B. Crawford, deceased. The action was brought by the administratrix to recover for the death of her intestate, which it was alleged was caused by the negligent and careless operation of one of the trains of the Louisville & Nashville Railroad Company while in the hands of the Director General, under the Transportation Act.

The only testimony in the record as to how D. B. Crawford met his death was given by the witnesses F. J. Farler, introduced for the plaintiff below, and B. M. Burns, introduced by the defendant below. Farler was the head brakeman and Burns the engineer of the train that ran over and killed Crawford. The accident occurred on the 31st day of October, 1918, between sundown and dark, at the time of day designated as "dusk" by most of the witnesses, and between 5:10 and 5:15 o'clock, according to the testimony of Engineer Burns. Crawford was first seen by the witnesses, Farler and Burns, lying between the rails on the track, and their attention was first attracted to him by his raising his head looking toward the approaching train. The engine was then within three car lengths, from 108 to 114 feet, of his body. The train consisted of a large type 90-foot engine and 40 loaded freight cars, and was traveling on a slightly downgrade at a rate of approximately 25 miles an hour. The track at the point where appellant was struck was straight for approximately a quarter of a mile in the direction from which the train had come. Farler, the witness for appellee, testified that just as he saw the body lying on the track he perceived that the air brakes had been applied. Burns, the engineer, and witness for appellant, testified that the instant he saw the body lying on the track he applied the emergency brakes, bringing the train to a stop as quickly as possible. Crawford's body, cut in two, was found under the tenth car when the train was brought to a standstill. No evidence was introduced that this train could have been stopped in any shorter distance. On the other hand, appellant proved that 400 to 450 feet was the shortest distance in which a train of the size and weight of the train in question, traveling at the rate of speed it was shown to have been traveling, could have been stopped by the use of the most approved and highest developed apparatus in use for the purpose. This accident occurred at the farm crossing of deceased, he owning the lands on both sides of the railroad right of way for some distance in either direction from the place where the accident occurred. Deceased was shown to have been drunk the afternoon he was killed, which probably accounts for his unfortunate selection of the railroad track as a bed.

The several reasons urged by appellant for a reversal may be merged and considered together by finding whether or not the court below erred in refusing appellant's motion for a peremptory instruction at the close of appellee's testimony and at the close of all of the testimony heard in the case.

No principle of law is better established in this jurisdiction than that one either sitting or lying upon a railroad track is held to be a trespasser, regardless of location, and that those in charge of a train owe him no duty except to use ordinary care to protect him from injury after discovering his peril. In the very recent opinion of this court in the...