Ill. Cent. R. R. Co. v. Dupree

• Decision Date: 25 May 1910
• Citation: 138 Ky. 459
• Parties: Ill. Cent. R. R. Co. v. Dupree.
• Court: Kentucky Court of Appeals

138 Ky. 459

Ill. Cent. R. R. Co. v. Dupree.

Court of Appeals of Kentucky.

May 25, 1910.

Appeal from Fulton Circuit Court.

R. J. BUGG, Circuit Judge.

Judgment for plaintiff, defendant appeals. — Reversed.

TRABUE, DOOLAN & COX, CARR & CARR and ROBBINS & THOMAS for appellant.

SHELBOURNE & SMITH for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Reversing.

Artie Dupree, a child five years of age, while attempting to cross appellant's railroad tracks at a public crossing known as "Meadows Crossing," in the city of Fulton, Ky., was run over by a freight train, and her feet so crushed that amputation became necessary. Suing by her next friend, Joe Dupree, she brought this action against the Illinois Central Railroad Company to recover damages The jury awarded her $2,000. The railroad company appeals.

The sole ground urged for reversal is the failure of the trial court to award appellant a peremptory instruction. Just previous to the accident, Artie Dupree and her sister, a child one year younger, who were in charge of a negro nurse 15 years of age, were standing near the track on which the accident occurred. Between them and the latter track was another track. Thus they were about 12 or 15 feet distant from the track where the injury took place. While thus standing, a freight train, consisting of an engine, caboose, and one car, approached the crossing. When the engine reached the middle of the street, Artie Dupree broke away from her nurse, and started to cross the track immediately in front of the engine. According to the weight of the evidence, she got across the first rail, but stumbled upon the second rail. The front wheels of the engine passed over her feet. Upon the pilot of the engine were two of appellant's employes. One of these attempted to catch the child, but failed to do so. As the engine approached the crossing, the engineer saw the nurse and two children standing in a place of safety. When the engine reached the middle of the street, at a point 18 or 20 feet from where the nurse and children were standing, the engineer saw the child break away from the nurse and start across the track. He immediately applied the emergency brakes, and did everything in his power to prevent the injury. At the place of the accident there was a plank crossing over the railroad tracks, and the accident occurred about 8 or 10 feet from the crossing. There was evidence to the effect that the engine bell was not rung as the train approached. There was also evidence to the effect that the train was going pretty fast. No witness for appellee, however, attempted to give the rate of speed. In speaking of the rate of speed they use such expressions as "fast," "very fast," and "pretty fast." The evidence for appellant is to the effect that the bell was being rung, and that the train was traveling at the rate of about five miles an hour. The engineer also testified that he succeeded in stopping the engine within 30 or 40 feet from where the child started to cross in front of it, and that it was impossible to stop any sooner. The principal witness for appellee on the question of how the accident occurred is Ardella Freeman, the colored nurse, who was in charge of appellee and her sister. She testified that she was with Artie Dupree and her sister at the time Artie was injured. The train was running fast. She did not hear any ringing of the bell or blowing of the whistle. When the engine was about halfway across the street, Artie took a running spell. She said, "Ardella, let's go on this side. Look, let's go over here." She attempted to grab Artie, but missed her. When Artie started across, she ran as fast as she could. At the time of the accident she and...