Hughes v. Cincinnati, N.O. & T.P.R. Co.

• Decision Date: 09 May 1891
• Citation: 91 Ky. 526,16 S.W. 275
• Parties: HUGHES v. CINCINNATI, N. O. & T. P. R. CO.
• Court: Kentucky Court of Appeals

16 S.W. 275

91 Ky. 526

HUGHES v. CINCINNATI, N. O. & T. P. R. CO.

Court of Appeals of Kentucky.

May 9, 1891

Appeal from circuit court, Pulaski county.

"To be officially reported."

Harrison & Tucker and Curd, Denton & Owsley, for appellant.

Simrall & Mack and O. H. Waddle, for appellee.

HOLT C.J.

Mary A Hughes, widow of William Hughes, sues for damages upon the ground that his death resulted from the willful neglect of the appellee. At the close of her testimony the lower court peremptorily directed the jury to find for the company. If a prima facie case had been made out, if, indeed there was evidence tending in any degree to show a right of recovery, this was error. This rule is too well settled in this state to need the citation of authority. The only question, therefore, before us is whether, guided by this rule, the instruction was proper. The deceased was a brakeman upon appellee's road. He had been so acting for nearly a year. During that time he had passed over the portion of the road where he was killed once, and sometimes twice, a day. He was entirely familiar with all the dangers usually incident to the service upon it. The train, a freight consisting of quite a number of cars and manned by a crew of three or four brakemen, an engineer, and a conductor, was going north. It stopped upon the summit of a hill to get coal. The descent from there was several miles long, and a steep grade. In descending, the train had to pass through four tunnels, known as Nos. 9, 8, 7, and 6. They were reached by the train in the order named. When it stopped to coal, the deceased was at the engine; and before it started he passed back over the train to the caboose; and when last seen alive he was at the rear of the train setting a brake. This was just before the train reached the first or No. 9 tunnel. The next seen of him was after they had passed through all four of the tunnels. He was then found in the agony of death, upon the top and right at the north end of the fifth car from the caboose. It was a box-car not belonging to the appellee's road, and higher than the ordinary car of that character. He was lying upon his back, his feet at or over the edge of the car, and the back of his head crushed in by coming in contact with some object. Tunnel 9 is about a half a mile from No. 8, it about a sixth of a mile from No. 7, and it about a half a mile from No. 6. While the train was running from where he was last seen until he was struck, he passed over five cars; but exactly when he did so is not shown. There were no eye-witnesses to the injury. The petition avers that the accident occurred in tunnel No. 7, and was occasioned by the willful neglect of the company in suffering timbers therein to be out of place. Contra, it is claimed by the appellee that it occurred in tunnel No. 6. It is shown that one cannot pass through the latter standing upright upon an ordinary box-car, nor through No. 7 upon such a car as that upon which the deceased was found; and that it was usual in passing through these tunnels for the brakemen upon box-cars to sit or lie down by the brakes, as they were compelled to be upon the tops of the cars to regulate the speed of the train, it being a down grade. The only testimony as to any loose timbers in tunnel No. 7 is that one of the hands upon the train says, as they passed through it, he saw the tunnel gang were at work there. He noticed some old timbers on one side of the track, and a new timber that was being put in its place was hanging up by the ropes. The evidence does not fix the position of this timber. It is not shown whether it was upon the side or next to the roof of the tunnel. There is no testimony whatever tending to show that it was in a position to strike a brakeman upon the top of a train when in his usual position, in passing through the tunnel; and, had it been so, it seems to us it could easily have been shown. The appellant urges that because one or two fingers could have been placed in the wound, and it was across the back of the head; because the deceased was not knocked from the top of the...