Illinois Cent. R. Co. v. McManus' Adm'x

• Decision Date: 30 April 1902
• Citation: 67 S.W. 1000
• Parties: ILLINOIS CENT. R. CO. v. McMANUS' ADM'X. [1]
• Court: Kentucky Court of Appeals

67 S.W. 1000

ILLINOIS CENT. R. CO. v. McMANUS' ADM'X. ^[1]

Court of Appeals of Kentucky.

April 30, 1902

Appeal from circuit court, McCracken county.

"Not to be officially reported."

Action by the administratrix of Robert McManus against the Illinois Central Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Reversed.

Quigley & Quigley and Pirtle & Trabue, for appellant.

Wheeler & Worten and E. W. Hines, for appellee.

DU RELLE, J.

Appellee brought suit as administratrix of her son, Robert McManus alleging that the deceased, having no money, was trying to procure a free ride on appellant's freight train from Central City to Louisville, and that while the train was under headway, near Green river, the company, by its brakeman, ordered him to get off, and, upon his failure to do so, immediately, by force and violence, ejected him as the train was passing over the trestle approaching Green river causing him to fall some 30 or 40 feet, from which fall he died. The company denied all the facts alleged in the petition. It appears that four persons, of whom the intestate was one, undertook to steal a ride on the freight train from Central City to Louisville. The principal witness for the plaintiff was Robert Craig, who tells what is in some respects a most remarkable and improbable story. He says that they boarded the train between 12 and 1 o'clock at night that he was riding on the truss rods under a box car, near the middle of the car, which was near the middle of the train; that one Sam Hooks and McManus were on the same car with him, the latter being on the lower step of the ladder on the side of the car, near the end; that a colored brakeman, with a red lantern, came along the top of the car and told McManus to get off the car, to which he responded that he would get off when the train stopped; that the brakeman then replied: "Damn you! you got on this train when it was running, and you can get off when it is running. If you don't get off, I will mash your fingers;" that the brakeman set his lantern down on the top of the car. Craig further says that he saw this by poking his head out from under the car and looking up, but that at this juncture he pulled his head in, for fear the brakeman would see him and neither saw nor heard anything more; that he, Hooks, and one Kelly, who was the fourth man, got off at McHenry. The body of McManus was subsequently found on the ground at the foot of the trestle, some 30 to 40 feet below the rails. The box cars in use on the Illinois Central Railroad appear to vary in height from about 10 to about 14 feet. The truss rods are iron rods running lengthwise of the car, fastened to the timbers at each end, and passing under iron braces which project downwards from cross timbers situated about a third of a car length from the ends of the car. The purpose of these truss rods is to support the load at the center of the car, the trucks supporting directly the load in the ends. The rods therefore slant downwards from the ends of the car to the braces, which are from 2 to 2 1/2 feet below the bottom of the car, and between the braces run parallel to the car floor. There were, according to Craig's statement, three of these truss rods on each side of the car in question. The outermost truss rod is from 12 to 14 inches inside of the line of the side of the car. Craig was therefore stretched across three of the truss rods, near the middle of the car, lying upon his stomach, and grasping the outer rod. So situated, he claims that he extended his head beyond the side of the car so as to see the face of the brakeman standing upon the top of the car, and detect his race. It is improbable that, under these circumstances, he could extend his head far enough to see the face of the brakeman, with the train in motion, even though going tolerably slow, as he states it was. It is also improbable that a brakeman upon a moving freight train would lean far enough over the slight overhang of the side of the car roof to be thus seen. It is still more improbable, if possible, that in this position, with his head close to the roar and rattle of the moving wheels, the witness could overhear the conversation he details. Both brakemen and...