Goodman's Adm'x v. Chesapeake & O. Ry. Co.

• Decision Date: 16 January 1934
• Citation: 252 Ky. 366,67 S.W.2d 469
• Parties: GOODMAN'S ADM'X v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

67 S.W.2d 469

252 Ky. 366

GOODMAN'S ADM'X v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky

January 16, 1934

Appeal from Circuit Court, Floyd County.

Action by Robert Goodman's administratrix against Chesapeake &amp Ohio Railway Company. From an adverse judgment, plaintiff appeals.

Affirmed.

Edward L. Allen, of Prestonsburg, for appellant.

Browning & Davis, of Ashland, and Combs & Combs, of Prestonsburg, for appellee.

STANLEY Commissioner.

There was a verdict for $3,000 upon the first trial of appellant's suit to recover damages of the appellee for the death of Robert Goodman. The defendant's motion for a new trial was sustained, and upon the second trial, at the conclusion of the plaintiff's evidence, a peremptory instruction for the defendant was given, with the resulting verdict. The plaintiff's motion to substitute the first verdict for the last and render judgment accordingly was overruled, and a judgment was entered dismissing the petition. The proper procedure was observed, and both records have been brought to us for review of the whole case.

Appellee's railroad runs in a general north and south direction along the west side of Levisa fork of Big Sandy river. But in local railroad parlance it is designated as east and west, and that designation was used in the record and will be carried into the opinion.

Dwale and Allen are incorporated villages in Johnson county, each having a population of about 350. The town limits meet, but the railway stations are perhaps a mile apart. The river is immediately on the north side of the double track and the hillside on the south. On that side, more or less paralleling the railroad, is a county road connecting the two towns. It seems that at some points this road touches the railroad right of way, but it follows the natural contours of the mountains. The railroad being the shorter way, it is used a great deal by pedestrians and sometimes by horseback riders. We think it is established that during the daytime the use is sufficient to require a lookout duty on the part of the trainmen. It is very doubtful if the proof was sufficient to call for that duty between midnight and daylight, but that issue seems to be immaterial to the decision.

About 2 o'clock on the night that Goodman met his death, in October, 1926, he appeared at the home of Lum Porter and later at his father's home in an intoxicated condition and in possession of a bottle of whisky. He was riding a mule. These places are not far from where his body was found on the railroad later in the morning. About 3 o'clock Crum a railroad pumper, and his son, walking on the west-bound track toward Allen, saw a bulk over on the outside of the east-bound track, which was apparently the deceased man. He was not identified because it was then dark and foggy and the Crums paid no attention to him. Shortly after this two east-bound trains, running about twenty minutes apart, came along. About daylight the younger Crum went back toward Dwale and discovered the body of a man on the east-bound track, and promptly reported that fact. The evidence tends to show that a few feet east of where the Crums had seen the bulky object or form of the man, the deceased's leg had been cut off below the knee by the wheel of a train, and perhaps 75 feet farther east his body had been struck and cut to pieces. At this place the railroad curves, the east-bound track being on the inside. The body was found about 400 feet east of the crossing of a street or public road in Dwale, and two witnesses testified that the engineer of an east-bound train could see an object about that distance ahead of him. These witnesses, however, merely expressed an opinion with little if any, qualification to do so. A map produced by the railway company on the second trial shows that the point where the body was found was perhaps 700 feet from the crossing, and the line of vision of the engineer was 675 feet. Appellant's counsel indicate that there was a path or roadway extending across the track from the county road, which comes up to the side of the right of way near the place where the body was found. But we gather from the evidence that the traveled way was longitudinal and had been made by the trespassers or licensees going up and down the railroad. Perhaps there was a short path connecting the road and railroad. It is appellant's view that the man had been struck by both...