Illinois Cent. R. Co. v. Leisure's Adm'r
| Decision Date | 23 January 1906 |
| Citation | 90 S.W. 269 |
| Parties | ILLINOIS CENT. R. CO. v. LEISURE'S ADM'R. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Ohio County.
"Not to be officially reported."
Action by George Leisure's administrator against the Illinois Central Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.
H. P Taylor, Trabue, Doolan & Cox, and J. M. Dickinson, for appellant.
D. B Rhoads, J. M. Porter, and Heavrin & Woodward, for appellee.
George Leisure was a section hand in the employment of appellant, the Illinois Central Railroad Company, working under a foreman named Moses Taylor. On the morning of October 27, 1903, the boss had the section men to put a hand car on the track and start along the railroad with it. Soon after they started a train was heard approaching from the south, and they then began to run the hand car at a swift rate in order to reach a public road crossing a short distance from there, where the hand car could be more easily removed from the track. While they were running the car in this way to get out of the way of the train, the section boss being at the brake and in control of the hand car, they ran upon two torpedoes which had been placed upon the track. Ordinarily, when a hand car would come upon a torpedo, they would stop and take the torpedo off and then go on. But on this occasion they did not have time to stop and ran over the torpedoes. When a hand car runs over a torpedo, the effect on the car is described as being the same as running over a small log; that is, the torpedo is an obstruction which the hand car must jump over, and the jump will be more violent if the car is running rapidly. When the car ran over the first torpedo, it exploded, and the car was raised perceptibly, either from striking the obstruction or the explosion. Leisure, who was working at the front end of the car, at this lost his hold on the lever, and before he could regain his hold the car ran over the second torpedo, which gave it another lurch, and he fell off, and the car ran over him, inflicting injuries from which he died shortly afterwards. His administrator filed this suit to recover damages for his death, and, judgment having been rendered in his favor for $1,750, the railroad company appeals.
He sued the railroad company, the section boss, Taylor, and two other agents of the railroad company, who, it was charged, had negligently left the torpedoes on the track. The railroad company filed its petition to remove the case to the United States Circuit Court. The court overruled its motion, and of this it complains. By the statute, where death results, a joint action may be brought against the corporation and its agents. The agents being residents of this state, and the joint action being authorized by the statute, the court properly refused to remove the case to the United States Circuit Court. Cincinnati, etc., R. R. Co. v. Cook's Administrator, 113 Ky. 161, 67 S.W. 383.
The proof on the trial on behalf of the plaintiff tended to show...
To continue reading
Request your trial
-
Southern Railway Company v. Howerton
...is, that in the Mize case there was no allegation that Mize could not by the use of ordinary care have discovered the torpedo, while in the Leisure case, as here, it is alleged that he no knowledge, had defective eyesight, and could not discover the torpedo by the use of ordinary care. In o......
-
Southern Ry. Co. v. Howerton
...seems to have been doing a specific work alone. As opposed to the rule in Mize v. Louisville, etc., Co., supra, is Illinois, etc., Co. v. Leisure (Ky.) 90 S. W. 269, in which a complaint similar to the one before us was held sufficient. The distinguishing feature of the two cases is that in......
-
Hines v. Kelley
...68 Tex. 500, 3 S. W. 99; Railway v. Hennessey, 75 Tex. 155, 12 S. W. 608; Jackson v. Cunningham, 141 Ala. 206, 37 South 445; Railway v. Leisure (Ky.) 90 S. W. 269; Railway v. Blanford, 105 Va. 373, 54 S. E. 1; Railway v. Abbey, 29 Tex. Civ. App. 211, 68 S. W. 293; Railway v. Barnes, 42 Tex.......
-
Southern Ry. Co. v. Howerton
...of the one placed in the position to give the necessary warning or to remove the torpedo before the accident. Illinois Central R. Co. v. Leisure (Ky.) 90 S. W. 269;Babcock v. Old Colony R. R. Co., 150 Mass. 467, 23 N. E. 325-326;Inland Steel Co. v. Smith, 39 Ind. App. 636-644, 75 N. E. 852;......