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

• Citation: 155 Ky. 745,160 S.W. 512
• Parties: ELLIS' ADM'R v. LOUISVILLE, H. & ST. L. RY. CO. [1]
• Decision Date: 13 November 1913
• Court: Court of Appeals of Kentucky

160 S.W. 512

155 Ky. 745

ELLIS' ADM'R v. LOUISVILLE, H. & ST. L. RY. CO. ^[1]

Court of Appeals of Kentucky.

November 13, 1913

Appeal from Circuit Court, Meade County.

Action by Harmon Ellis' Administrator against the Louisville Henderson & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Popham Trusty & Roose, of Louisville, for appellant.

Frank C. Malin, of Owensboro, J. R. Skillman, of Louisville, and R A. Miller, of Owensboro, for appellee.

NUNN J.

Harmon Ellis was killed by one of appellee's freight trains at 8:30 o'clock on the morning of July 18, 1912. His administrator sues for damages, and at the conclusion of his evidence the lower court directed the jury to find a verdict for the defendant railroad.

The accident occurred at a season of damaging storms and rains and appellee's track and bridge crews were being worked overtime repairing the damage. A crew was at work repairing a bridge at or near Lodiburg Station, and flagmen were stationed at proper distances east and west of the bridge to warn approaching trains of the construction work at the bridge. Ellis had said to his assistant foreman that morning, as they were preparing to leave for work, "'I have got a kind of a crick or crook in my neck,' and he said, 'If I knew that I wouldn't get to flag to-day,' he said 'I would go home,' and I said to him, 'Come, go on out; we are going to put in some timber, and there will be some flagging to do, and you have been flagging, and I suppose you will get to do it this morning."' Ellis got on the hand car and went to the place of work with the bridge crew. Reaching there, he was sent by the foreman a proper distance west of the bridge to flag trains. The train which struck and killed him was a west-bound freight of 23 cars, 18 of which were loaded. It was signaled by the flagman east of the bridge, and safely crossed the bridge. There was a private road crossing about a quarter of a mile west of the bridge, and for which the statutory signals were given. A quarter of a mile still further west, about midway of a curve and cut, Ellis was struck by a train and killed. From the bridge west, the train was going downgrade over a moist track. Appellant claims that at the time and place of the accident, the appellee owed the decedent the duty of keeping a lookout, and giving reasonable warning of the approach of the train; that the employés in charge of the train discovered the peril of the decedent in time to stop before striking him by the exercise of ordinary care, and that the decedent had worked for the appellee continuously for more than 16 hours out of the 24 just preceding the accident, and by reason thereof was in an exhausted physical condition, and unfit for service. Insisting that the railroad negligently failed in these duties to decedent, the appellant contends that the railroad should respond in damages, and that the lower court erred in directing a verdict otherwise.

From the evidence in this case Ellis was a flagman, with the duty to keep a lookout for trains, and it is difficult to conceive upon what basis appellant contends that trainmen should keep a lookout for him. While it was Ellis' duty to flag east-bound trains--that is, trains approaching the bridge from the west--still to properly perform his duties he should have kept alert and awake so that, even if upon the track, he could have removed himself from danger of a train although coming from the other direction. When a flagman is sent out to watch for trains and warn them of danger, the company and its trainmen have a right to presume that he will not only watch for trains, but also for his own safety, and his failure to do this is his own negligence, and he cannot recover of the company for an injury which he received by reason of his neglect, unless his presence and peril were discovered by those in charge of the train in time to avoid striking him, by the exercise of ordinary care. Conniff v. L. & N. R. Co., 124 Ky. 763, 99 S.W. 1154, 30 Ky. Law Rep. 982; Wickham v. L. & N. R. Co., 135 Ky. 288, 122 S.W. 154; L. & N. R. R. Co. v. Hunt's Adm'r, 142 Ky. 778, 135 S.W. 288.

Did those in charge of the train discover Ellis' peril in time to stop the train by the exercise of ordinary care? As...