Filbin's Adm'r v. Chesapeake, O. & S.W. Ry. Co.

• Decision Date: 09 April 1891
• Citation: 91 Ky. 444,16 S.W. 92
• Parties: FILBIN'S ADM'R v. CHESAPEAKE, O. & S.W. R. Co.
• Court: Kentucky Court of Appeals

16 S.W. 92

91 Ky. 444

FILBIN'S ADM'R v. CHESAPEAKE, O. & S.W. R. Co.

Court of Appeals of Kentucky.

April 9, 1891

Appeal from court of common pleas of Jefferson.

"To be officially reported."

R. C Davis and Matt O'Doherty, for appellant.

Frank D. Swope, Bullitt & Shields, A. Barnett, and P. H. Darby, for appellee.

HOLT C.J.

Thomas J. Filbin was instantly killed in the night-time, while employed as a fireman upon one of the appellee's trains by it coming in contact with a tree that had fallen across the track.His administrator brought this action under section 3, c. 57, Gen. St., which provides: "If the life of any person or persons is lost or destroyed by the willful neglect of another person or persons, company or companies corporation or corporations, their agents or servants, then the widow, heir, or personal representative of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover punitive damages for the loss or destruction of the life aforesaid."The petition avers that the death was caused by the willful neglect of the company in permitting the tree to remain standing within reach of the track with knowledge or when by the exercise of reasonable diligence it would have known, that its decayed condition rendered it dangerous to travel.The answer put in issue the neglect, and upon this question only the case was tried out, resulting in a verdict for the company.

Complaint is made that the trial court abused its discretion in allowing the amended answer, denying the dangerous condition of the tree, to be filed.It was shown that the denial had been omitted from the answer by oversight, and while the amendment was permitted to be filed after the court had ordered a trial of the case, yet it had not in fact begun and there was no error in this respect.The Civil Code, with a view to a trial upon the merits and the attainment of justice, allows great liberality in this respect; and the lower court should not be controlled in the exercise of the power unless it be manifestly abused.It is claimed that the company had notice that the tree causing the accident was liable, by reason of its decayed condition, to fall at any time, and endanger the lives of those upon its trains; and, even if it did not know it, that yet by the exercise of reasonable care in providing against obstructions upon its track it might have known it, and that therefore, in either event, it was guilty of willful neglect.The tree did not stand upon its right of way.It extended only 28 feet from the track towards it, while it was about 55 feet away, and a fence between bounding the right of way and the land of the adjacent owner.The tree was about 85 or 90 feet high, and large otherwise in proportion.It stood upon the side of a hill that descended to the railroad...