Hughes' Adm'r v. Louisville & N.R. Co.

• Decision Date: 29 April 1902
• Citation: 67 S.W. 984
• Parties: HUGHES' ADM'R v. LOUISVILLE & N. R. CO. [1]
• Court: Kentucky Court of Appeals

67 S.W. 984

HUGHES' ADM'R v. LOUISVILLE & N. R. CO. ^[1]

Court of Appeals of Kentucky.

April 29, 1902

Appeal from circuit court, Garrard county.

"Not to be officially reported."

Action by the administrator of Henry Hughes against the Louisville &amp Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

Robt. Harding and R. H. Tomlinson, for appellant.

Breckinridge & Shelby and Edward W. Hines, for appellee.

HOBSON J.

Appellant's intestate, Henry Hughes, was found dead at 6 o'clock in the morning on Sunday, July 30, 1900, upon the side of the track of appellee's railroad track, a short distance south of the town boundary of Lancaster, and outside of it. There was a gash in the back of his head, one of his arms was crushed at the elbow, his back was broken, and there were bruises extending up to the shoulders. He was lying on a fill about 15 or 20 feet high. There was a pathway along the side of the track on which people walked, and he was in this pathway or near it. He was seen in Lancaster about 10 o'clock the night before, and was then somewhat under the influence of liquor. Between 1 and 2 o'clock he was seen again near the railroad station in Lancaster a little more intoxicated. From this time until he was found dead the next morning no one, so far as the proof shows, saw him. How he came to his death is wholly a matter of conjecture. His father and mother lived near the railroad, a short distance beyond where he was found. Their house had a gate leading out upon the railroad track, and in going to Lancaster or returning the family frequently passed along the track, and from this it may be inferred that the deceased was going home from Lancaster when he was killed. After he was seen, between 1 and 2 o'clock, and between that time and 6 o'clock when he was found dead, only one train passed over the road. This was a passenger train going north about 3 o'clock. The proof offered for appellant showed, in addition to these facts, that this train passed running at the rate of something like 35 miles an hour; that a short distance north of where the deceased was found a public highway known as "Baker Avenue" crossed the railroad; and that the train did not ring the bell or blow the whistle as it approached this crossing, although it did whistle a little further south. To enable the people in the house to get out on the railroad, the section foreman had placed a plank from the track over to the gate. A number of persons passed along the railroad at this point, especially during the day.

On these facts the learned circuit judge peremptorily instructed the jury to find for the defendant. It is earnestly insisted for appellant that...