L. & N. R. Co. and W. & B. M. R. Co. v. Davis
| Decision Date | 05 February 1915 |
| Citation | 162 Ky. 572 |
| Court | Kentucky Court of Appeals |
| Parties | Louisville & Nashville Railroad Company, and Wasioto & Black Mountain Railroad Company v. Davis. |
Appeal from Bell Circuit Court.
BENJAMIN D. WARFIELD and WM. LOW for appellants.
N. J. WELLER for appellee.
The appellee, Jesse Davis, sued the appellants, Louisville & Nashville Railroad Company, and the Wasioto & Black Mountain Railroad Company, in the Bell Circuit Court, complaining that one of the trains operated by the last named appellant, by the gross negligence and carelessness of its servants, had been run against him while he was walking on the track of the Wasioto & Black Mountain Railroad Company, on the 13th day of December, 1911, cutting and bruising his head, back and legs, and causing him great suffering and permanent impairment of ability to earn money, and asking a judgment against the two railroads for the sum of $10,000.00 in damages. The basis for his suit as developed by his petition was, that a county road extended from Clear Creek, on the south side of Cumberland River, and up said river to the mouth of Patterson's Branch, and from thence on to Cannons Creek, and that two or three years before his injury the defendant railroads, in constructing the Wasioto & Black Mountain Railroad, had located the road bed of that railroad from the mouth of Patterson's Branch down to its intersection with the main line of the Louisville & Nashville Railroad, immediately in the bed of the county road, and had utterly destroyed that road and rendered it impassible, and that thereafter, and up to the time of the injury, the public in traveling from the mouth of Patterson's Branch down to the place where the two railroads intersect, had used the tracks of the Wasioto & Black Mountain Railroad as a public thoroughfare, because they had no other road upon which they could travel between said points on account of the destruction of the county road, and that he, in going from the mouth of Patterson's Branch to Mill Rice, a point on the right of way of the Louisville & Nashville Railroad Company, and near the intersection of the two roads, while walking on the track of the railroad, early in the morning, and while he was using ordinary care for his own safety, the employes of the defendants negligently and carelessly ran their train over him, causing the injury complained of. He insists that under the facts stated, that he was traveling at a point where he had a right to be, and that the railroad company owed him a lookout duty, which they did not perform.
The railroad companies filed a joint answer, in which they traversed all of the allegations of the petition and also, in addition to that, made a plea of contributory negligence on the part of the appellee, which he by reply denied.
Upon these issues the case was tried, and at the close of the evidence for the plaintiff the appellants asked the court to instruct the jury to find a verdict for them, and this motion having been overruled by the court, they complain. The trial resulted in a verdict and judgment against the appellants for the sum of $7,000.00. The appellants filed grounds and made a motion to set aside the verdict and judgment and to grant them a new trial, which motion the court below having overruled, they appeal to this court.
In addition to the refusal of the court to give the jury a peremptory instruction to find for them, they also complain that the court failed to instruct the jury properly in the giving of instructions number one, two, and three, and to which they objected at the time, and also complain that the verdict of the jury was excessive.
In order to determine whether the court below was in error because of its refusal to give the peremptory instruction asked for, it will be necessary to make a statement of the facts which the evidence for the appellee tends to prove, and to see whether or not, under those facts, he was entitled to have his case submitted to the jury.
It seems from the evidence that the main line of the Louisville & Nashville Railroad Company passing through Pineville and on to Middlesboro crosses the Cumberland River at Wasioto, and at that point it extends up the Cumberland River and near to it to the mouth of Patterson's Branch, at which point it turns and goes up Patterson's Branch and on to Middlesboro. The Louisville & Nashville Railroad Company acquired its right of way from where it crosses the Cumberland River to the mouth of Patterson's Branch in 1888 or 1889. The Wasioto & Black Mountain Railroad Company intersects with the Louisville & Nashville Railroad on the south side of the Cumberland River, near Wasioto, and from thence it proceeds up the Cumberland River, and between the tracks of the Louisville & Nashville Railroad Company and the Cumberland River, to the mouth of Patterson's Branch, at which point it quits the neighborhood of the Louisville & Nashville Railroad track and proceeds up the Cumberland River to Harlan county.
It seems that for a great many years last passed, and as far back as forty years, there had been a passway, which amounted to not much more than a mere trail, which extended from the mouth of Clear Creek, which is west of the intersection of the two railroads, and ran south and east along the Cumberland River, crossing the Louisville & Nashville Railroad at a point near the intersection of the two railroads, and from thence on up the Cumberland River to the mouth of Patterson's Branch, between the Louisville & Nashville Railroad tracks and the Cumberland River. This road, from where it crossed the Louisville & Nashville Railroad tracks, and for a distance of three hundred or four hundred yards, ran between the tracks of the Wasioto & Black Mountain Railroad and the Cumberland River, and at the end of said three or four hundred yards, and on to the mouth of Patterson's Branch, the road contended for had been taken up by the grade and tracks of the Wasioto & Black Mountain Railroad, and the railroad had been substantially built in this road bed. The evidence further shows that, between the place where this dirt road comes in contact with the track and grade of the Wasioto & Black Mountain Railroad, and on down the river to where it crossed the track of the Louisville & Nashville Railroad, its bed was twenty or thirty feet from the tracks of the Wasioto & Black Mountain...
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