Early's Adm'r v. Louisville, H. & St. L. Ry. Co.

• Decision Date: 03 March 1903
• Citation: 72 S.W. 348,115 Ky. 13
• Parties: EARLY'S ADM'R v. LOUISVILLE, H. & ST. L. RY. CO.
• Court: Kentucky Court of Appeals

72 S.W. 348

115 Ky. 13

EARLY'S ADM'R v. LOUISVILLE, H. & ST. L. RY. CO.

Court of Appeals of Kentucky.

March 3, 1903

Appeal from circuit court, Henderson county.

"To be officially reported."

Action by Walter Early's administrator against the Louisville Henderson & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. P McClain and Clay & Clay, for appellant.

Yeaman & Yeaman, Jas. P. Helm, and Chapeze Wathen, for appellee.

SETTLE J.

This action was instituted in the Henderson circuit court by the appellant, Farmers' Bank & Trust Company, as the administrator of Walter Early's estate, to recover damages for the alleged negligent killing of the deceased by the servants and employés of appellee in charge of one of its freight trains. The answer denies the negligence complained of, and, for further defense, avers that the death of appellant's decedent was caused by his own negligence which is denied by the reply. The trial resulted in a verdict for appellee by reason of a peremptory instruction given by the lower court at the conclusion of appellant's evidence, and, a new trial having been refused the appellant, it asks this court to declare that the giving of the peremptory instruction by the lower court was improper, and also that that court erred in overruling the motion for a new trial.

The record shows that the only ground relied on for a new trial is the alleged error of the lower court in giving the jury the peremptory instruction to find for appellee. It is patent, therefore, that the question of whether the peremptory instruction was or not proper must be determined from the evidence introduced by appellant on the trial. Our examination of the record leads us to the conclusion that the following facts are to be regarded as satisfactorily established by the evidence, viz.: First. That appellant's decedent was killed on the afternoon of May 9, 1901, by appellee's west-bound freight train, at or near a private crossing one mile from Reed's station, and at a point about 330 yards south of a public crossing. Second. That at the point where he was struck he could, if on the track, or within 40 or 50 feet of it, see up the track towards Reed's station, whence the train was coming, a distance of at least a mile. Some of the witnesses not in view of the train itself say they saw the smoke from it heard distinctly the noise it was making in running, and heard it whistle for, or before reaching, the public crossing, which was 330 yards from the point where the deceased was killed. Third. That the crossing at or near which he was killed was a private crossing; that is, one made where a road from the adjoining field crossed the railroad track. The evidence does not disclose whether the deceased, at the time he was killed, was walking on the track, or attempting to cross it in front of the train, or lying with his body on the track. No eyewitness was introduced to testify as to the manner of his death, unless the statements of one or more of the trainmen, made to the witness Patry, and detailed by him on the trial, are to be considered as competent evidence. Patry testified that when the train stopped, after running over Early, one of the trainmen called him to the place of the accident to see the remains of the dead man; and when he got there he was, in substance, told by the conductor in charge of the train that the man killed was lying on the track about three feet east of the crossing when run over by the train, and that they first saw something white on the track, which looked like a piece of paper, and, when they discovered that it was a man, they were too close with the train to stop it before striking him. We do not think these statements competent, and they should have been excluded by the lower court upon the objection made by counsel for appellee, as they appear to have been made too long after the accident to be considered a part of the res gestæ;...