L. & N.R. Co. v. Slusher's Administrator

• Decision Date: 25 January 1927
• Citation: 217 Ky. 738
• Parties: Louisville & Nashville Railroad Company, et al. v. Slusher's Administrator.
• Court: United States State Supreme Court — District of Kentucky

217 Ky. 738

Louisville & Nashville Railroad Company, et al. v. Slusher's Administrator.

Court of Appeals of Kentucky.

Decided January 25, 1927.

1. Death — $10,000 for Death Held Not Excessive. — In an action for the death of a man 19 years old, evidence that he was earning $4 per day at the time of his death held to warrant a verdict for $10,000.

2. Railroads — Finding Headlights of Railroad Motorcar were Not Burning Held Warranted. — In an action for the death of one run over by a railroad motorcar, evidence held to warrant conclusion that the headlights were not burning at the time.

3. Railroads — Whether Deceased was Struck by Motorcar at Crossing or Some Distance Away Held for Jury. — Whether decedent, run over by railroad motorcar, was struck at a crossing or while lying across the track some distance therefrom, held for the jury.

4. Appeal and Error — Admission of Evidence, Not Considered in Court's Instructions, Held Not Prejudicial. — In an action for the death of one run over by a railroad motorcar, admission of evidence as to the use of the track between a crossing and the place from which he started walking along the track, and the former occupancy of the ground, on which the track was laid, by a county road, held not prejudicial to defendants, where not taken into consideration by the court's instructions.

5. Railroads — Refusal of Peremptory Instructions Held Not Erroneous as Disregarding Uncontradicted Testimony as to Injury by Railroad Motorcar. — Overruling motion for peremptory instructions for defendants, in an action for the death of one run over by a railroad motorcar, held not erroneous as disregarding positive, uncontradicted testimony of eye-witnesses, corroborated by witnesses on the ground, that deceased was lying on the track some distance from a crossing, at which he was alleged to have been struck, in view of testimony as to finding an uninterrupted trail of blood from within three or four feet of the crossing to the point where the body was found.

6. Evidence — Uncontradicted Evidence of Facts Precluding Recovery Cannot be Disregarded. — Neither the court not jury may disregard evidence of a state of facts showing a party not entitled to recover, where not contradicted by competent evidence.

7. Railroads — Uncontradicted Evidence Deceased was Discovered on Railroad Track too Late to Avoid Injury Warrants Directed Verdict. — Uncontradicted evidence, standing alone, that deceased was lying on the track when discovered by the crew of a railroad motorcar, and that it was then too late to avoid running over him, would entitle defendants railroad and coal companies to a directed verdict.

8. Railroads — Refusal of Peremptory Instruction for Railroad, Sued for Death Caused by Motorcar Operated by Coal Company, Held Erroneous. — In absence of evidence that a railroad company, operating freight cars for hauling coal over a certain railroad, owned, controlled, or managed the right of way and roadbed or was responsible for the operation of a coal company's cars thereover, the court should have sustained its motion for a peremptory instruction in an action against it and the coal company for the death of one run over by a motor car in charge of the latter's employees.

9. Appeal and Error — Holding that Court Erred in Denying Peremptory Instruction for Railroad in Death Action Held Not to Require Reversal of Judgment Against Codefendant Coal Company. — A holding that the court erred in denying a peremptory instruction for a railroad company, in an action against it and a coal company for the death of one run over by a motorcar on a railroad track, held not to require reversal of a judgment for plaintiff as to the coal company, in the absence of error prejudicial to its substantial rights.

10. Pleading — Allegation that Decedent was Killed by Motorcar Propelled by Employees of "One or Both" of Defendants Held Not to State Cause of Action Against Either. — Allegation of petition that decedent was killed by a motorcar propelled by employees of defendants railroad and coal companies, "one or both of them." held insufficient alone to state a cause of action against either.

11. Pleading — Alternative Allegations Must Relate to Facts, Not Parties. — Alternative allegations must relate to facts and not parties.

12. Railroads — Allegation Death Happened by Defendants' Negligent Operation of Railroad Motorcar Held to State Cause of Action Against Both. — Allegations of petition that intestate's death happened by defendants railroad and coal companies, their agents and employees, operating a motorcar without lights, signals, or warnings, while intestate was walking along the track after dark, stated a cause of action against both defendants.

13. Trial — Instruction Not Requiring Ordinary Care by Decedent Held Erroneous, in View of Evidence of His Contributory Negligence. — In an action for the death of one run over by a motorcar on a railroad track, an instruction not requiring decedent to have used ordinary care for his own safety held erroneous, in view of evidence warranting conclusion that he was contributorily negligent though not sitting or lying on the track at the time as defendants' witnesses testified.

14. Trial — Instruction Should Require Belief "From Evidence" that Defendant was Negligent. — Court should require jury to believe "from the evidence," not merely to believe that defendant was guilty of some acts of negligence, before they can find it guilty thereof.

15. Trial — Instruction Requiring Finding that Motorcar Struck Decedent Because of Failure to Have Lights Shining Held Erroneous as Assuming Fact. — In an action for the death of one run over by a railroad motorcar, an instruction requiring a finding "that, because of the failure to have said lights shinning and throwing light, the car ran upon and struck decedent," held erroneous as assuming a fact.

16. Appeal and Error — Erroneous Instruction Relating to One Defendant Held Not Prejudicial to Codefendant in Death Action. — An instruction not requiring the jury to believe certain things "from the evidence" to find defendant railroad company guilty of negligence, in an action for the death of one run over by a motorcar, held not prejudicial to codefendant coal company whose employees were operating the car.

Appeal from Bell Circuit Court.

WOODWARD, WARFIELD & HOBSON, A.M. WARREN and LOW & BRYANT for appellants.

N.R. PATTERSON and DAVIS & BETHURUM for appellee.

OPINION OF THE COURT BY JUDGE LOGAN.

Reversing.

Appellee's intestate, I.D. Slusher, was killed by a motor car operated by the appellant, Black Star Coal Company, over a railroad running from Blackmont to Black Star, a distance of about seven miles. The intestate's death occurred in November, 1924, at or near a railroad crossing about one-half mile from Blackmont on the railroad mentioned. Suit was instituted in the Bell circuit court by his administrator against the L. & N. Railroad Company and the Black Star Coal Company seeking to recover damages for his death. A trial before a jury resulted in a verdict for $10,000.00 against both of the appellants.

The petition sets out that the L. & N. Railroad Company is a corporation authorized to carry on the business of a common carrier for hire; that the Black Star Coal Company is a corporation authorized to carry on the business of mining and such business as is incident thereto. It is alleged that appellee's intestate, a young man nineteen years of age, started from Blackmont, "traveling along a line of railroad owned and operated by the defendants leading up Pucketts creek, and that some half mile from the station of Blackmont the plaintiff's intestate was run over and instantly killed by a motor car propelled by the employees of the defendant, one or both of them." It is then alleged that at the time young Slusher was killed he was traveling along said railroad track extending along Pucketts creek, and that said track theretofore and for several years had been continuously used by the traveling public for going up and down said Pucketts creek; that said creek was a populous mining section, with a great many people living thereon, and that said railroad track was constantly, with the full knowledge of the defendant, used by the traveling public walking backward and forward thereon; that at the time intestate was killed he was walking along said track after dark, and "that the defendants, their agents and employees, in propelling said motor car which killed him, were operating same at a high rate of speed and without any light or signal or warning of any kind, and that said accident to his intestate happened by the defendants, their agents and employees operating said motor car without any lights or signal or warning, suddenly running on or over said intestate, then and there killing him."

The appellants filed a joint answer to the petition in which the material allegations of the petition were denied. It was admitted, however, in the answer that appellee's intestate was run over and killed by a motor car on the railroad track leading up Pucketts creek, but it was denied that he was traveling along said railroad track when he was killed. There is a further plea of contributory negligence.

Thereafter appellee filed his amended petition in which he adopted the allegations of his original petition with the modification that at the time his intestate was killed the said intestate was on a crossing where the said railroad mentioned crosses the main county highway leading up Pucketts creek, and that at the time the car struck appellee's intestate he was on said crossing and the car came in contact with his body at a time when intestate was on said county highway crossing. The amended petition was filed over the objections of appellants and the affirmative allegations were controverted of record by agreement of parties.

The jury having found a verdict against both appellants, they filed a motion and grounds...