Embry v. Louisville & N.R. Co.

Citation36 S.W. 1123
PartiesEMBRY v. LOUISVILLE & N. R. CO.
Decision Date17 September 1896
CourtCourt of Appeals of Kentucky

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by John Embry against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Sprigg & Cheef, for appellant.

W. H Marriott, for appellee.

LANDES J.

The appellant sought, by this action in the Hardin circuit court to recover from the appellee damages for injuries inflicted upon him by being struck by a locomotive drawing a fast freight train of the appellee, at a point near the town and station of Sonora in Hardin county, on the right of way of appellee, along which the people of the neighborhood for many years had been in the habit of passing in going to and from the town. It was alleged in the petition that the accident occurred "while the plaintiff was at and near a crossing over and along said defendant's railroad track, which crossing was frequently and continually used as a footway by the citizens of the neighborhood, by and with the consent and knowledge of the defendant,"-the agents or servants of the defendant in charge of the train of cars having failed to give "any warning to the plaintiff," or to exercise "ordinary care for the safety of the plaintiff" and that, "through the gross and willful neglect of its agents and servants in charge of one of its freight trains," the said train was run "against the plaintiff," by reason of which the injuries complained of were inflicted. A demurrer to the petition was filed by the appellee, which was overruled. The answer, filed simultaneously with the demurrer, contained-First, a traverse; and, second, an averment that the injuries complained of were the result of contributory negligence on the part of the appellant. The case was submitted to a jury and, at the conclusion of the testimony introduced by the appellant, the court, on the motion of counsel for appellee, and over the objections of counsel for the appellant, instructed the jury "to find for the defendant"; and, the verdict having been so returned by the jury, judgment was rendered dismissing the petition at the cost of the appellant, and this appeal is prosecuted to reverse that judgment.

The only question to be decided relates to the propriety of the peremptory instruction, in pursuance of which the jury returned a verdict adverse to the appellant, and this may well be ascertained by referring to the petition. There was no statement in the petition that showed that the appellant had any right to be on the appellee's track or right of way, or that he was other than a trespasser, when he was struck by the locomotive; and it contained no allegation that the agents or servants of the appellee who were in charge of the train saw him on the track before they "ran said train against" him, or showing that they owed him any duty whatever in handling the train at that place and time. These were necessary allegations, and without them the petition would not have sustained a verdict and judgment against the company in the action; for it is well settled that a railroad company, or an engineer in charge of one of its trains of cars, is not required to keep a special lookout for trespassers on its track, and is under no obligation to act for the safety of trespassers until they are...

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17 cases
  • Hartung v. Union Pac. R. Co.
    • United States
    • Wyoming Supreme Court
    • July 20, 1926
    ... ... 339, 9 Ky. Law Rep. 702; France v. R ... R. Co., 22 S.W. 851, 15 Ky. Law Rep. 244; Embry v ... R. R. Co., 36 S.W. 1123; Murray v. So. R. R ... Co., 140 Ky. 453, 131 S.W. 183. It was ... Ry. Co., 99 S.W. 1154; Ry. Co. v ... Harrod's Adm'r., (Ky.) 115 S.W. 699; ... Louisville R. Co. v. Seeley's Adm'r., 202 ... S.W. 638; Quinlanton v. U. P. R. Co., 197 P. 1095; ... ...
  • Bales v. Louisville & N.R. Co.
    • United States
    • Kentucky Court of Appeals
    • February 8, 1918
    ... ... L. & ... N. R. R. Co., 39 S.W. 694, 19 Ky. Law Rep. 96; C. & ... O. Ry. Co. v. Perkins, 47 S.W. 259, 20 Ky. Law Rep. 608; ... Embry v. L. & N. R. R. Co., 36 S.W. 1123, 18 Ky. Law ... Rep. 434; I. C. R. R. Co. v. Waldrop, 72 S.W. 1116, ... 24 Ky. Law Rep. 2127; C., N. O. & T. P ... ...
  • Coates v. Union Pacific Railroad Company, a Corp.
    • United States
    • Utah Supreme Court
    • February 12, 1902
    ... ... Co. v ... Feathers, 10 Lea 103; Cordell v. N.Y. Cen. etc. Ry ... Co., 64 N.Y. 468; Louisville etc. Ry. Co. v. Vittoes ... (Ky.), 41 S.W. 269; O'Donnell v. Railroad Co., 6 R ... Such ... respondent. Galveston etc. Ry. Co. v. Harris (Tex.), ... 36 S.W. 776; Embry v. Louisville & N. R. Co. (Ky.), ... 36 S.W. 1123; Houston, E. & W. Ry. Co. v. Powell (Tex.), 41 ... ...
  • Chesapeake & O. Ry. Co. v. Dawson's Adm'r
    • United States
    • Kentucky Court of Appeals
    • May 28, 1914
    ... ... the circumstances were such as to impose such duty on the ... railroad company. Embry v. L. & N. R. R. Co., 36 ... S.W. 1123, 18 Ky. Law Rep. 434; Gividen's Adm'r ... v. L. & N. R. R ... ...
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