Illinois Central Ry. Co. v. Sheegog's Admr.

Decision Date20 June 1907
PartiesIllinois Central Ry. Co. v. Sheegog's Admr.
CourtKentucky Court of Appeals

Appeal from Union Circuit Court.

J. W. HENSON, Circuit Judge.

Judgment for plaintiff, defendant appeals. — Affirmed.

TRABUE, DOOLAN & COX for appellant.

J. M. DICKINSON, HENRY D. ALLEN and LOCKETT & LOCKETT of counsel.

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HENDRICK & MILLER for appellee.

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OPINION OF THE COURT BY JUDGE NUNN — Affirming.

This action was instituted by the administrator of John E. Sheegog, who was killed in the derailment of an engine and train of cars of which he was engineer at the time. The Chicago, St. Louis & New Orleans Railroad Company, the owner and lessor of the road, Illinois Central Railroad Company, the lessee, and F. J. Durbin, the conductor in charge of the train, were made defendants to the action. It was alleged in the petition, in substance, that on the 7th day of May, 1903, his intestate was in the employment of the defendant, Illinois Central Railroad Company, as an engineer on one of its trains, and while in the performance of his duty, as such engineer, the train upon which he was engaged was, through the joint and gross negligence and carelessness of the three defendants herein, derailed, and his intestate thereby instantly killed. In the petition the negligence and concurrent negligence of each of the defendants is alleged with some particularity. We copy from it as follows: "At the time the defendant the Chicago, St. Louis & New Orleans Railroad Company was the owner of said roadbed, fences, right of way, trestles, and bridges where said accident happened, and the Illinois Central Railroad Company was the lessee of said railroad property and premises, and was the owner of the engines and cars, trains, and appliances by which the said intestate was killed, and was operating said road, trains, and engine, and the defendant F. J. Durbin, who is a citizen of Kentucky, was the conductor in the employment of the latter railroad company, and in charge of said train and engine and appliances, and the said intestate was required to obey, and was obeying and acting under, the orders of the said defendant F. J. Durbin. The plaintiff now says that, by the negligence of both of said companies, defendants hereto, the said roadbed, rails, track, cattle guards, ties, fence, and right of way of the said railroad was allowed to be, and for a long time had been, in a weak, rotten, ruinous, and defective and improper condition, and by the negligence of the Illinois Central Railroad Company its engines and cars were knowingly allowed to be and remain in an improper, defective, and dangerous condition, and its said engine and cars to be so constructed as to be in a dangerous condition, and this improper and dangerous condition of the said road, premises, and cars of the defendants was known to the said defendants, and at the time of this said wreck and accident, same were being operated in a careless manner by all of said defendants; and the said Durbin, by his negligence in running, ordering, and directing said train, contributed to the cause of said accident; and the plaintiff says that the negligence of the defendant (Chicago, St. Louis & New Orleans Railroad Company) in its maintenance of its tracks, roadbed, engine, cattle guards, rails, ties, fences. etc., as above set out, and together with the negligence of the said Illinois Central Railroad Company, in directing and permitting its engine, cars, and road to be operated while in a defective and dangerous condition, and the negligence of the said conductor, in ordering and directing the running and management of said train, and in failing to give proper directions, all together, jointly caused said wreck and killed the plaintiff's said intestate," etc. That his intestate was a young, vigorous man, an excellent locomotive engineer, intelligent, sober, industrious, of most excellent habits and prospects, and making and saving large sums of money, and, by the joint gross negligence of the defendants in thus causing his death, the plaintiff has been damaged in the sum of $25,000. The plaintiff further alleged that his place of residence, as well as that of his intestate, to the date of his death was in Central City, Muhlenburg county, Kentucky that the defendant Illinois Central Railroad Company was a corporation organized under the laws of the state of Illinois, and the defendant Chicago, St. Louis & New Orleans Railroad Company, was a Kentucky corporation organized under the laws of this State, and the defendant F. J. Durbin was a resident and a citizen of the state of Kentucky.

The defendant Illinois Central Railroad Company filed its petition and bond for removal of the case to the federal court, alleging a separable controversy between it and appellee determinable between them without either of its codefendants, and alleging joinder of its codefendants in fraud of federal jurisdiction. The court refused to transfer the case. Then each of the defendants filed a separate answer, denying all material allegations of the petition. The issues being completed, a trial was had, which resulted in a verdict for appellee as against the Illinois Central Railroad Company for $8,250, and on peremptory instructions the jury found for the other two defendants. The Illinois Central Railroad Company appeals, and assigns the following reasons for reversal: First, the admission of incompetent and the rejection of competent evidence; second, erroneous instructions to the jury; third, the refusal of the court to give a peremptory instruction to find for it; fourth, the refusal of the court to surrender jurisdiction to the federal court.

The third assignment for reversal necessitates our stating the substance of the evidence. Appellee's testimony conduces to show the following facts: The deceased was a young man, about 29 years old, sober, industrious, of good habits, strong, and in good health. That he had been following the avocation of railroad engineer for about eight years. That his run was from Central City, his home, to Paducah, Ky. That he was killed on appellant's line of road which connects with the main line at Princeton, Ky., and extends to Evansville, Ind., known as the Ohio Valley Line. The deceased had only made about two trips on this line, both at night; one about three weeks before, and the one on which he was killed. When the train reached a flag station called "Harding," in Union county, Ky., the engine struck a mule, turned over, and the deceased was instantly killed. No one lived at this station. A public road passes by it, crossing the railroad at right angles. From this public road running south, the way the train was going, a distance of about 150 or 200 yards to a culvert, the road is fenced on either side; but there were no cattle guards at the public road, and loose stock, according to the evidence, passed into this cul-de-sac, and grazed on either side of the track. The proof shows that this mule came upon the track in front of the engine, and made a few jumps south, and then was struck by the engine and cut in two, leaving the front part on the left of the track between the ends of two ties. From this point the evidences of the small wheels that supported the pilot were noticed on the ties for 15 or 20 feet, and from that point the large drive wheels of the engine were thrown from the rails, and from that point to 20 or 30 feet beyond the culvert the ties, rails, and everything were swept clean. The proof shows that the engine was fitted with a stub pilot, instead of with a standard pilot; that the stub pilot stood four or more inches above the rails, and had but the slightest slant; that the standard pilot was very slanting, extended out in front of the engine four or five feet, and rested only two inches above the rails and that, with it in use, when the track is properly constructed, and reasonably well ballasted it was almost impossible for stock when struck to get under the train — the pilot would knock them off. The testimony showed, without much contradiction, that the portion of the track described had never been ballasted; and that the ties were laid on dirt; that much of it had been washed away, so that it did not come to the top of the ties; that a track is properly ballasted when crushed stone, gravel, or cinders are tamped under, upon, and between the ties, and up to a point about even with the top of the rails (and such was the condition of the track at each end of this cul-de-sac); and that this track as constructed left about 14 or 16 inches from this stub pilot to the dirt between the ties, which made the chances of clearing the track of stock when struck by the pilot doubtful. It was proved by some of the section hands on the road that this part of the track had been in that condition for a long time, and the general superintendent of the road had had his attention called to it, and had been requested to furnish material to put that part of the road in reasonably safe condition, but had failed to do so up to the time of the accident. They also stated that the track as laid would often get out of alignment, and that they were compelled, by the use of jackscrews, to force it back. Many witnesses testified that they had been at this point when trains passed, and saw that the track was insecure; that engines and cars would wabble in passing over it, would sink in some places, and rise in others, would mash some ties down, and water and mud would gush up over them; that when trains had passed, the rails would straighten and raise some of the ties two inches from the earth. Many witnesses examined the conditions there after the wreck, and about all of them testify that there were many rotten ties. Some of them stated that more than one-half were rotten, that some of them had rotted into two pieces, and so rotten that they could pull...

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