Lingenfelter v. Louisville & N.R. Co.

• Decision Date: 05 May 1887
• Citation: 4 S.W. 185
• Parties: LINGENFELTER v. LOUISVILLE & N. R. Co.
• Court: Kentucky Court of Appeals

4 S.W. 185

LINGENFELTER v. LOUISVILLE & N. R. Co.

Court of Appeals of Kentucky.

May 5, 1887

Appeal from court of common pleas, Jefferson county.

Young &amp Trabue, J. T. O'Neal, and S. F. J. Trabue, Jr., for appellant.

Wm Lindsay, for appellee.

PRYOR C.J.

The rule contended for by counsel for the appellant is undoubtedly correct. Where the issue of fact is to be determined by a jury, and the evidence is conflicting, or conduces to make out the plaintiff's cause of action, the trial judge should not direct a nonsuit. In this case the widow of the intestate alleged that the death of her husband who was in the service of the company, was caused by the willful neglect of the employes of the company in charge of the train. The deceased had been in the employ of the company as watchman in its yard for a number of years, and at the time of his death was in a like character of employment, or required to see that the cars in the yard were in proper order, and, if not, to report their condition. The accident happened at night, when the engine was on a side track moving south at a pace but little faster than one walking. The deceased, when killed, had his lantern, and was walking north, meeting the engine, on the same track, as it moved south. The engine moved at the rate of five miles an hour, with a bright head-light in front. The deceased seems to have been a careful, prudent man generally; but in the present instance his death was caused by his own neglect, and not that of the employees of the railroad company.

Within the yard was a space between the tracks where the employees were in the habit of walking, but at the time the accident happened there was mud and water in this space, that no doubt caused the unfortunate man to go on the track. It seems however, that it was not unusual for those in the employ of the company to use the tracks in the yard in passing; but it is argued that, if those in charge of the train had been looking out, they could have seen the unfortunate man, and avoided the danger. The bell rang as the engine moved, and with a bright head-light in front, and a lantern in the hand of the deceased at the time, there is but little doubt but that he could have been seen by those in charge of the engine. The fireman in fact saw the deceased the moment before he was struck, and cried out to stop the engine. It was then within a few feet of the deceased, and, although stopped, it was...