Eskridge's ex'Rs v. The Cincinnati, New Orleans & Texas Pacific Ry. Co.

• Decision Date: 10 December 1889
• Citation: 89 Ky. 367
• Court: Kentucky Court of Appeals
• Parties: Eskridge's Ex'rs v. The Cincinnati, New Orleans & Texas Pacific Railway Company.

Page 367

89 Ky. 367

Eskridge's Ex'rs v. The Cincinnati, New Orleans & Texas Pacific Railway Company.

Court of Appeals of Kentucky.

December 10, 1889.

APPEAL FROM GRANT CIRCUIT COURT.

COLLINS & FENLEY FOR APPELLANT.

C. B. SIMRALL FOR APPELLEE.

CHIEF JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT.

The life of W. K. Eskridge was destroyed in Grant county under the following circumstances: He was, in February, 1887, returning from Dryridge, on the east side, to his residence, about one and a half miles west of the railroad of appellee, driving a team of four horses, harnessed, but not hitched to a vehicle, he being astride the saddle-horse, and about the time the leaders had reached or were very near to the track, at what is called Conrad's crossing of a county road, a train of cars passed rapidly southward, frightening them so much he lost control of the team, and fell or was thrown to the ground, and, from injuries thereby received, died in a few days; whereupon, this action was instituted by his executor to recover damages therefor, but upon conclusion of the plaintiff's evidence on the trial in the lower court a peremptory instruction was given, and verdict was rendered for the defendant.

In the original petition it was stated the injury was caused by negligence of those in charge of the southbound accommodation train, but in an amended petition filed before answer, it was stated to have been caused by willful negligence of servants of appellee in charge of the south-bound express train, which passed before the other; and one of the alleged errors is refusal of the court to permit the plaintiff to file a second amended petition, in which it was stated, as in the original, the south-bound accommodation train caused the injury.

As motion to file the last-named pleading was made after the jury was sworn and some of the witnesses had testified, we think the court properly overruled it, and also properly sustained objection to testimony of two passengers on the accommodation train, who, it was averred, would state they heard no whistle or bell when it approached Conrad's crossing; for the issue having been made up and partly tried as to negligence of those in charge of the express train, it would have been obviously prejudicial to the defendant to allow it then changed.

Certain witnesses having stated they did not hear any signal of the approaching train, it was the province of the jury to judge from the facts before them whether such witnesses could have heard the signal if it had been given, and the court properly refused to permit the witnesses to give their opinion on the subject, for it was no more than an expression of opinion. The plaintiff offered to prove by a witness that she, the witness, noticed the trains very closely that passed the crossing the day after the testator was injured for the purpose of ascertaining whether they gave the signal as they approached that place, and, of the large number passing, only three whistled, and also that the trains did not usually do so.

It was held by this court in an action to recover damages of a railroad company for destruction of fences, grass and other property along the line of the road, alleged to have been ignited by sparks of fire escaping from the chimney of a particular locomotive, that it was competent, in the absence of direct evidence as to origin of the fire, and in order to thus show it, to prove the usual condition of the defendant's engines. (Ky. Cen. R. Co. v. Barrow, 6 Ky. Law Rep., 240.)

The theory upon which such testimony is admissible is, that "the business of running trains on a railroad supposes a unity of management and a general similarity in the fashion of the engines and character of the operations" (Shelden v. Hudson R. R. Co., 14 N. Y., 218); for every railroad company is bound to have and use, in operating its trains, machinery scientifically constructed, and best adapted to prevent injury to persons and property. Besides, there is a statute of this State which requires all railroad...