Illinois Cent. R. Co. v. Willis' Adm'r

• Decision Date: 07 December 1906
• Parties: ILLINOIS CENT. R. CO. v. WILLIS' ADM'R.
• Court: Kentucky Court of Appeals

97 S.W. 21

123 Ky. 636

ILLINOIS CENT. R. CO. v. WILLIS' ADM'R.

Court of Appeals of Kentucky.

December 7, 1906

Appeal from Circuit Court, Meade County.

"To be officially reported."

Action by George Willis' administrator against the Illinois Central Railroad Company. From a judgment for plaintiff defendant appeals. Reversed.

J. M Dickinson, Trabue, Doolan & Cox, J. S. Wortham, and J. W Lewis, for appellant.

S. M Peyton and Thomas Hamilton, for appellee.

LASSING J.

This is an appeal from the Meade circuit court rendered upon the verdict of a jury in favor of appellee against appellant for causing the death of appellee's intestate, George Willis, at Muldraugh's station, in Meade county, in September, 1904. Deceased was 54 years of age when killed.

He had gone to the railroad station for the lady for whom he worked to deliver some boxes of peaches for shipment. He was accompanied by his 10 year old son. The station stands upon the west side of the main track, then comes the passing track east of the main track, and then a spur track east of the passing track. On the day upon which deceased was killed there were two box cars standing upon the spur track for the purpose of being loaded with barrels of apples which were then being shipped from that station. The north end of one of these cars extended north of the north end of the depot, and the south end of the other car reached down to about even with the south end of the depot. South of these two freight cars was a freight car standing on the passing track. It was about noon when deceased reached the station with his peaches. He drove up to the depot and had unloaded a part of them, when a train approached, and evidently fearing that his horse would scare, he drove back from the depot until the train had passed; he then returned to the depot, finished unloading the peaches, received the bill of lading of the agent in charge, left his little son sitting in the wagon, and crossed over the main track and the passing track to where the two freight cars were standing on the spur track and in which the apples were being received for shipment. He climbed up into the car where two men were at work, and asked what they were paying for apples. His little son testified that his father went to that car for the purpose of securing empty barrels from those in charge of the car who worked there, and it may be that deceased had gone there for that purpose. There were two men receiving apples in said car, one named Ellwanger and one named Schoening. They testified that he had no sooner climbed into the car and asked the price of apples, than he heard the approach of a train or engine. He immediately jumped out of the car on the east side of it, ran south around the car on the spur track and around the south end of the car on the passing track out on the main track, where he was struck and killed, being knocked or carried some distance by the engine. Some 10 or 12 witnesses testified that this engine was following some five, six, or less than ten, minutes behind the fast train which had just passed. Most of them say that the engine whistled for the crossing north of the station, and all of them agree that they heard the engine coming, even before they saw it, as it was making an unusual amount of noise, and some of them thought it was a "wrecking engine." Ellwanger and Schoening both say that deceased heard the approaching engine, and his conduct shows beyond question that he heard it, whether it signaled or not, for he jumped out of the car, ran around it and the other car, evidently for the purpose of going over the road beyond the railroad to look after the safety of his little son whom he had left sitting in the wagon with the horse untied. Proof was introduced showing that the engine was running rapidly, the testimony varying from 25 to 60 miles an hour. Those in charge of the train testified that deceased came upon the track suddenly from behind the box car standing on the passing track; that when they first discovered him upon the track it was impossible to have avoided striking him. Other witnesses testified that from the position in which the engine was upon the track--moving at the rate of speed it was when deceased came upon the track--they did not believe the accident could have been avoided. Muldraugh is not an incorporated town, and the record does not show its size, or the number of people living there. The proof shows that the road makes a curve north of the station, and standing in the track at the station one can see an engine 400 feet away; that the public road or crossing is 200 feet north of the station. This was all the proof.

The petition shows that the administrator of the deceased was a resident of Bullitt county, and the deceased was a resident of Meade county, at the time the accident occurred in Meade county as stated. Appellant filed a special demurrer to the jurisdiction of the court, and it was overruled, and an exception saved. At the conclusion of plaintiff's testimony defendant moved for a peremptory instruction, which was overruled. This motion was renewed at the close of all the testimony, and again overruled, to which defendant excepted. Five questions are raised on this appeal: (1) The court erred in refusing to sustain the special demurrer to the jurisdiction. (2) The court erred in admitting incompetent evidence. (3) The court erred in refusing to give a peremptory instruction. (4) The verdict is not sustained by the evidence, and is contrary to law. (5) The jury was not properly instructed.

Appellant complains of the ruling of the trial court in overruling its special demurrer, which was a plea to the jurisdiction of the court. Section 73 of the Code provides that "an action for an injury to a passenger or his property must be brought in the county in which the defendant or either of several defe...