Hughes v. Louisville & N.R. Co.

• Decision Date: 29 November 1898
• Citation: 48 S.W. 671,104 Ky. 774
• Parties: HUGHES v. LOUISVILLE & N. R. CO. [1]
• Court: Kentucky Court of Appeals

48 S.W. 671

104 Ky. 774

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

Court of Appeals of Kentucky.

November 29, 1898

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by Nannie J. Hughes against the Louisville & Nashville Railroad Company to recover damages for the death of Oliver T. Hughes by defendant's negligence. Judgment for defendant, and plaintiff appeals. Reversed.

Matt O'Doherty, for appellant.

Lyttleton Cooke, for appellee.

PAYNTER J.

In September, 1894, the deceased, Ollie T. Hughes, was a brakeman on a freight train going south from Louisville. Immediately after leaving Belmont, and just after daylight he, as his duties required, left the caboose, and went up on top of it to remove a deck lantern. There were iron ladders on each side of it at the rear end. After getting the lantern, he started to go down the ladder provided for that purpose on the west side of the caboose, and while descending it, it is claimed, he was struck by the girders of the bridge over which the train was passing, and thrown from the caboose to the track, causing injuries which resulted in his death a month thereafter. The court instructed the jury to return a verdict for the defendant; so the question presented is whether the case should have gone to the jury.

It is claimed that the bridge was not constructed in a way that made it reasonably safe for the deceased to discharge his duties, and that by reason thereof he lost his life. On the other hand, this is denied by the appellee, and it is claimed that, if it was not so constructed, the deceased was presumed to know its condition, and that his contract of employment required him to take the risk; and further, that the evidence failed to show that the injury was the result of the negligence of the appellee. Testimony was offered by the plaintiff tending to show that the space through which the train passed, between the girders of the bridge, was 12 feet, while one of the witnesses for the defendant testified that the space was slightly less than 12 feet. There was testimony tending to prove that the caboose (from which the deceased fell), including the ladders, was something over 9 feet wide, leaving the space between the ladder and the inner edge of the girder about 17 inches. There is testimony tending to prove that, after the deceased got on top of the caboose and procured the lantern, he started down the ladder, and, when last seen, part of his body was over the side of the caboose, descending the ladder when a crash was heard as from the breaking of glass, and the conductor looked out of the window, and saw him lying across the track in the rear of the moving train. No one saw him at the instant he fell; hence there is no witness to describe the exact manner of the fall from the caboose, or what caused it. There is testimony tending to prove that a man in the act of descending the ladder, and in that position, while passing through the bridge, would probably be struck by it. This is the testimony of an experienced brakeman, who is familiar with trains and also the bridge in question. In fact, there is no testimony in the record which tends to show that he was not in a perilous position in going down the ladder while crossing the bridge. The evidence also tends to prove that the intestate's leg was injured; that a narrow strip about four inches long, torn from his trousers, was found on the bridge; and also some lint from his clothes was found adhering to the girder of the bridge.

It is argued that, under the decisions of this court, it was necessary for the plaintiff to have offered testimony showing that the death of the deceased was the result of the negligence of the appellee. This is true. It is also argued by counsel for appellee that there is a failure to show that it was guilty of such negligence as to make it liable for the injury. To support that contention, among other cases are cited Wintuska's Adm'r v. Railroad Co. (Ky.) 20 S.W. 819; Nance's Adm'r v. Railroad Co. (Ky.) 17 S.W. 570; Hughes v. Railroad Co., 91 Ky. 526, 16 S.W. 275. It was held in the Hughes Case that one suing to recover damages for injury arising from another's neglect must offer some testimony showing that the party complaining was injured, and also introduce some testimony tending to show the other party is to blame for it as negligence cannot be presumed. The court held in that case that the evidence did not tend to establish the fact that he had been struck by a loose overhanging timber in one of the tunnels; and that, if he was killed in going through another tunnel, he could not recover, because brakemen were required to sit or lie down by the brakes, as it was customary for them to do in passing through the tunnels. It was claimed in the Wintuska Case that the deceased was killed in going down the ladder at the side of a box car, with the view of going to a flat car in front of it, and in doing so he came in contact with a...