Hearell v. Illinois Cent. R. Co.

• Court: Court of Appeals of Kentucky
• Writing for the Court: QUIN, J.
• Citation: 213 S.W. 561,185 Ky. 41
• Parties: HEARELL v. ILLINOIS CENT. R. CO. ET AL.
• Decision Date: 20 June 1919

213 S.W. 561

185 Ky. 41

HEARELL
v.
ILLINOIS CENT. R. CO. ET AL.

Court of Appeals of Kentucky.

June 20, 1919

Appeal from Circuit Court, Crittenden County.

Action by Ernest Hearell, administrator, against the Illinois Central Railroad Company and others. From judgment for defendants, plaintiff appeals. Affirmed.

A. C. Moore and C. S. Nunn, both of Marion, for appellant.

Jno. C. Gates, of Princeton, Jno. W. Blue, Jr., of Marion, R. V. Fletcher, of Chicago, Ill., and Trabue, Doolan, Helm & Helm, of Louisville, for appellees.

QUIN, J.

Ernest Hearell, as administrator of the estate of Winstell Hearell, instituted this action against appellees, defendants below, to recover damages for the death of his intestate, a private in the National Guard and one of a squad of six assigned to guard a trestle about 2 1/2 miles north of Wickliffe, at what is known as Minor's slough. The track, for practically the entire distance from Wickliffe to this point, is on a fill from 15 to 30 feet high. On the night of May 19, 1917, decedent had the watch from 6 o'clock to midnight. A rifle and a lantern formed part of his equipment. Corporal Lanier, a member of the squad, was talking to him about 7 o'clock. At this time Hearell was lying down by the track, and about 9 o'clock the same witness saw Hearell sitting on a piece of timber extending about 5 or 6 feet from the track, and on the east side thereof. He describes this timber as being one of the end sills of the trestle. An hour and a half later, to wit, about 10:30 p. m. Wayland Smith, another member of the squad, returning to the camp from Wickliffe, found Hearell's dead body lying near a water barrel on the trestle with his head about 3 inches from the rail, his right hand in his sweater, his left leg straight out, the right leg propped up, and the whole right side of his [213 S.W. 562] skull crushed. When Smith reached a switch 250 or 300 yards from the south end of the trestle, he heard one of defendant's trains, known as the "Seminole Limited," approaching from the south, and it gave a signal for what is known as Fillmore's Crossing, something less than a mile from the trestle. He stopped at the switch to allow this train to pass. He says the train gave no signals other than the one for the crossing. The engine was equipped with a large, good light. Smith testified that it was about a three or four minutes walk from the switch to the point where he found Hearell's body.

There are two trestles at this point. One is owned by defendant and used by northbound trains of defendant and the Mobile & Ohio Railroad Company. The other is owned by the latter company, and is used by the south-bound trains of both railroads.

At the conclusion of the evidence offered in behalf of plaintiff the court sustained a motion for a directed verdict, and we are asked to reverse the judgment entered pursuant thereto. This we cannot do.

Where it is sought to recover damages for negligence or wrongful acts, there must be some evidence to show that deceased lost his life through the negligence of the defendant, and this evidence must be sufficient to charge the defendant with a breach of duty, and recovery cannot be had on mere surmises or speculation as to how the injury complained of happened, nor will it be presumed that the defendant was guilty of actionable negligence if the injury may as reasonably be attributed to a cause that will excuse the defendant as to a cause that will subject it to liability. Hughes v. C., N. O. & T. P. R. Co., 91 Ky. 526, 16 S.W. 275, 13 Ky. Law Rep. 72; Louisville Gas Co. v. Kaufman Straus Co., 105 Ky. 131, 48 S.W. 434, 20 Ky. Law Rep. 1069; Early's Adm'r v. L., H. & St. L. Ry., 115 Ky. 13, 72 S.W. 348, 24 Ky. Law Rep. 1807; Hurt v. L. & N. R. R. Co., 116 Ky. 545, 76 S.W. 502, 25 Ky. Law Rep. 755; Stuart's Adm'r v. N., C. & St. L. Ry. Co., 146 Ky. 127, 142 S.W. 232; Caldwell's Adm'r v. C. & O. R. R. Co. et al., 155 Ky. 609, 160 S.W. 158; Weidekamp's Adm'x v. L. & N. R. R. Co., 159 Ky. 674, 167 S.W. 882; Bell's Adm'x v. C. & O. Ry. Co., 161 Ky. 466, 170 S.W. 1180; Rogers' Adm'r v. Kosmos Portland Cement Co., 163 Ky. 84, 173 S.W. 317; Woodburn v. U. L., H. & P. Co., 164 Ky. 29, 174 S.W. 730; Sutton's Adm'r v. L. & N. R. R. Co., 168 Ky. 81, 181 S.W. 938; I. C. R. R. Co. v. Pierce's Adm'x, 175 Ky. 488, 194 S.W. 534; Siemer v. C. & O. Ry. Co., 180 Ky. 111, 201 S.W. 469.

In the Hughes Case, supra, perhaps the most oft quoted case on this subject, the court said:

"One suing to recover damages for injury arising from another's neglect must offer some testimony conducing to show that it was so occasioned. Negligence cannot be presumed in a case like this one. The presumption is the other way. It cannot be found without evidence. The complaining party must not only show the injury, but also some evidence tending to show that the other party is to blame for it. Mere proof of the injury, with attending circumstances showing that the party charged with neglect may be blameless or may be at fault will not do. In such a case there is no evidence tending to show that the injury was due to neglect. Circumstances are merely presented upon which one may theorize as to the cause of the accident. The burden of showing neglect rests upon the complainant, and under such circumstances he has offered no evidence tending to show it. He has merely presented two or more states of case upon which one may theorize as to the cause of the accident."

And the court, with approval, quotes from Cotton v. Wood, 8 Com. Bench. N. S. 568 (cited in Thompson on Negligence [1st Ed.] p. 364), as follows:

"I wish merely to add that there is another rule of the law of evidence which is of the first importance, and is fully established in all the courts, viz. that where the evidence is equally consistent with either view--with the existence or nonexistence of negligence--it is not competent to the judge to leave the matter to the jury. The party who affirms negligence has altogether failed to establish it. That is a rule which

...