Kasey's Adm'r v. Louisville, H. & St. L. Ry. Co.

• Court: Kentucky Court of Appeals
• Writing for the Court: BARKER, J.
• Citation: Kasey's Adm'r v. Louisville, H. & St. L. Ry. Co., 124 S.W. 380 (Ky. Ct. App. 1910)
• Decision Date: 19 January 1910
• Parties: KASEY'S ADM'R v. LOUISVILLE, H. & ST. L. RY. CO. [d]

124 S.W. 380

KASEY'S ADM'R v. LOUISVILLE, H. & ST. L. RY. CO. ^[d]

Court of Appeals of Kentucky.

January 19, 1910

Appeal from Circuit Court, Breckenridge County.

"Not to be officially reported."

Action by Gordon R. Kasey's administrator against the Louisville, Henderson & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Mercer & Mercer, for appellant.

Helm &amp Helm, for appellee.

BARKER J.

Gordon R. Kasey, an infant child about two years old, was killed on the freight platform of appellee's station at Ekron, Ky by a heavy iron wheel falling upon and crushing him. The father of the infant qualified as administrator of his estate, and instituted this action to recover damages for his death, on the theory that the injury was caused by the negligence of appellee's agents and servants who had placed the wheel upon the platform.

The wheel was about 3 feet in diameter, and weighed about 300 pounds. It had been received as freight at the station at Ekron some time during the day upon which the accident happened. The station agent, who received the wheel, with the assistance of two other men, placed it in an upright position about 22 inches from the wall of the freightroom, and then leaned it over so that the top rested against the wall of the freightroom, and the bottom rested on the platform, as said before, at a point about 22 inches from the wall. Without contradiction, it appears from the evidence that the wheel standing at the angle thus formed was in such a position that it could not have caused any injury to the infant. Afterwards, and without the knowledge or consent of the station agent, two men in no wise connected with the railroad undertook to ascertain whether or not they could lift the wheel. The first of these, one Bruner, lifted it from the platform twice, and then left it standing upright. The second man then essayed to lift it, but was unable to do so, and merely rolled it backwards and forwards. The result of all this was that the wheel was left standing in an upright position, and on a platform which slanted from the wall of the freightroom towards the railroad track. The evidence is not clear as to how long the wheel stood in an upright position, but it is certain that the plaintiff failed to show that anybody connected with the railway knew of the change in its position from the angle of safety at which it had been placed by the railway employés. In the evening, about 7 o'clock, after the office of the railway had been closed the father of the infant, who lived just opposite the station, and who, it seems, expected to receive by freight a wheel such as the one standing upon the platform, observed it from his house across the street, and, thinking, perhaps, it was the wheel he was expecting, started across the street to more carefully inspect it. While on his way he met his wife and infant son, and, taking up the child in his arms, in company with his wife, walked over to the platform. When he reached the platform, without observing the...