Hearell v. Illinois Cent. R. Co.

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

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 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 ought never to be lost sight of."

It would be impossible for any jury or court to fix the cause of Hearell's death. Since there is no more a presumption of negligence against defendant than there is a presumption of contributory negligence on the part of decedent, and it being incumbent upon plaintiff to prove negligence on the part of defendant or those operating its train, or facts from which such negligence could reasonably be inferred, the trial court properly sustained the motion for a directed verdict.

Courts are not authorized and juries should not be permitted to indulge in speculation or to guess as to the cause of an accident. There must be some tangible evidence from which it can be fairly said the accident was brought about, and where the evidence is so unsatisfactory as to require the court or jury to resort to surmises or speculation as to how the injury occurred, there will be no presumption of negligence.

We find in Bell's Adm'x v. C. & O. Ry. Co., supra, that decedent was a section laborer in the service of the appellee, and on the night he was killed he was assigned to the duty of watching for slips and slides along the hillside adjoining the company's tracks. He went on duty at 4 o'clock in the afternoon, and his body was found the next morning. It was sought to hold the company liable because of its neglect in not equipping one of its engines with a burning headlight, and also negligence in the operation of the train, but the court said that, no negligence having been shown upon the part of appellee, there was nothing for the jury to pass upon, and the trial judge properly directed a verdict for the defendant.

I. C R. Co. v. Pierce's Adm'x, supra, also presents facts similar to those involved here. Decedent was a substitute flagman employed by the appellant and worked at irregular intervals, and when not employed by the company he solicited insurance. He had applied for a pass to go to Marion, Ky. and on the morning he was killed he went to a yard office of the company, about a mile and a half from Princeton, to see if his pass had arrived, and while crossing the tracks, near the yard office, he was struck by one of the appellant's passenger trains and killed. It was alleged that the place of the accident was very much frequented by the company's employés and others; that decedent was there on business and by invitation of the company, and his death was caused by the negligent operation of the company's trains. The court said that at the time of the accident decedent was not an employé of the company, nor was he a trespasser, but, viewed in the light most favorable to appellee, decedent was, on...