Johnson's Adm'r v. Louisville & N.R. Co.

Citation25 S.W. 754,91 Ky. 651
PartiesJOHNSON'S ADM'R v. LOUISVILLE & N. R. CO.
Decision Date17 May 1883
CourtCourt of Appeals of Kentucky

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by the administrator of the estate of Henry Johnson deceased, against the Louisville & Nashville Railroad Company, to recover for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment entered on the verdict of a jury directed by the court in favor of defendant, plaintiff appeals. Affirmed.

Boland & Thurman and I. H. Trabue, for appellant.

Wm Lindsay and Lyttleton Cooke, for appellee.

LEWIS J.

This is an action for damages, brought against appellee, the Louisville & Nashville Railroad Company, by appellant administrator of the estate of Henry Johnson, deceased, who it is alleged in the petition, was, by the negligence of the agents and servants of appellee, struck and killed by a moving train of cars while he was crossing the railroad track. Upon the conclusion of the evidence offered upon the trial by the plaintiff in the action, the court instructed the jury to find for the defendant, and the action of the court in giving that instruction is assigned as an error, and presents the only question upon this appeal.

From the uncontroverted statements in the pleadings and the evidence, it appears that the railroad is crossed, at the place where the killing occurred, by a private passway leading from the residence of one Dr. Foss to a turnpike road on the opposite side of the railroad; that deceased, as the train approached, was going on foot from the residence of Foss, where he then lived, along the passway, which was inclosed on each side by a board fence, making a narrow lane and, without pausing to either look up or down the track, or to listen for the train, he stepped upon the road, and was struck by the engine and killed. The only witness who saw the occurrence testified that she heard no signal given by those in charge of the train as it approached that crossing, either by ringing the bell or blowing the whistle, but that she heard the whistle, before the killing, at a place where a county road crosses the railroad, about one-half mile from there. The witness also testifies that the train was running very fast, but whether faster than the usual rate of speed the evidence was not given with sufficient intelligence or clearness to enable us to determine. Nor does it appear whether the deceased was seen, or could have been seen, by those in charge of the train before he emerged from the lane. It is, however, manifest that, if he had looked along the track, he might have seen the train approaching in time to have stopped and avoided the collision. That he did not hear the train (as, obviously, he did not) was owing to the fact, proved on the trial, that his sense of hearing was defective, -so much so that, in the language of one of the...

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33 cases
  • Hartung v. Union Pac. R. Co.
    • United States
    • Wyoming Supreme Court
    • July 20, 1926
    ... ... Co. v ... Harrod's Adm'r., (Ky.) 115 S.W. 699; ... Louisville R. Co. v. Seeley's Adm'r., 202 ... S.W. 638; Quinlanton v. U. P. R ... the railway company." ... In the ... case of Ellis's Admr. v. Ry. Co., 155 Ky. 745, ... 160 S.W. 512, it was claimed, as in the ... ...
  • McKinney's Adm'x v. Cincinnati, N. O. & T. P. R. Co.
    • United States
    • Kentucky Court of Appeals
    • January 26, 1932
    ...was given by the court in Hines v. Taylor's Adm'r, 192 Ky. 298, 233 S.W. 716. Instructions Nos. 1 and 2 were copied from Johnson's Adm'r v. L. & N. R. R. Co., supra. Instruction No. 3 was authorized by the evidence of engineer and is not susceptible to the criticism that it particularizes a......
  • McKinney's Adm'X v. Cin., N.O. & T.P.R.R. Co.
    • United States
    • United States State Supreme Court — District of Kentucky
    • January 26, 1932
    ...danger. It is urged that this case is plainly within this last class. To sustain this insistence she cites Johnson's Adm'r v. L. & N.R.R. Co., 91 Ky. 651, 25 S.W. 754; Louisville & N.R.R. Co. v. Hunt's Adm'r, 142 Ky. 778, 135 S.W. 288, 290; Murray v. Southern Ry. Co., 140 Ky. 453, 131 S.W. ......
  • Carter v. Southern Ry. Co.
    • United States
    • South Carolina Supreme Court
    • October 2, 1912
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