Louisville, H. & St. L. Ry. Co. v. Hall

• Citation: 94 S.W. 26
• Parties: LOUISVILLE, H. & ST. L. RY. CO. v. HALL.
• Decision Date: 07 June 1906
• Court: Kentucky Court of Appeals

94 S.W. 26

LOUISVILLE, H. & ST. L. RY. CO. v. HALL.

Court of Appeals of Kentucky.

June 7, 1906

Appeal from Circuit Court, Breckinridge County.

"Not to be officially reported."

Action by F. W. Hall against the Louisville, Henderson & St. Louis Railway Company. From a judgment in favor of plaintiff defendant appeals. Reversed and remanded for new trial.

Helm Bruce & Helm, and Miller & Todd, for appellant.

B. H Young and Mercer & Mercer, for appellee.

HOBSON C.J.

F. W. Hall was an engineer in the service of the Louisville, Henderson & St. Louis Railway Company. On the 19th of December, 1900, he pulled an extra from Henderson to Owensboro reaching Owensboro at 11:30 p. m. The extra had in it a dead engine and some work cars with the working crew upon them. When he reached Owensboro he was ordered to run from Owensboro eastward as the third section of No. 64. About 13 miles east of Owensboro he ran into the second section of No. 64, and in jumping from the engine at the time of the collision received serious injuries. He brought this suit to recover damages on the ground that the servants in charge of the second section were guilty of gross negligence in stopping it upon the track and failing to give any signal or warning to him. The company pleaded that the collision was by reason of his own negligence and asserted a counterclaim against him for the loss it sustained in the injury to its engine and cars by reason of the collision. There was one mistrial of the case, and on the second trial the jury found for the plaintiff, and the railroad company appeals.

The proof shows that the first section of No. 64 had left Owensboro more than an hour before the second section left. It was required by the rules of the company that the third section should leave 10 minutes behind the second section and, as they were both to run on the time of No. 64, they should have kept 10 minutes apart at all points on the road. As we understand the record the meaning of the rule is that each section of a train runs by the time card of that train and ordinarily leaves the different stations the same number of minutes behind the time card as it starts behind the time card at the starting station. To illustrate, if the second section left Owensboro an hour behind the first section then, unless it had orders to the contrary, Hall had a right to expect that it would be at each station under ordinary conditions an hour behind the time of No. 64 at that station, and it was incumbent upon him to run 10 minutes behind this time. The evidence is not as clearly presented on this question as it might be, but the above is what we understand it to mean. If, for any reason No. 64 stopped upon the track, it was incumbent upon those in charge of that train immediately to send a flagman back a given distance and give certain signals. Hall testifies that after leaving Owensboro he ran at the speed allowed him by the time card and that about thirteen miles from Owensboro he ran into the second section standing on the track, and the required signals were not given. That the signals were not given is conceded, but the men on the second section testify that their train broke in two; that they made an emergency stop and before any signal could be given to Hall he dashed into them by reason of the fact that he was running so close to them as to give no time for the signals. The company insists that under all the evidence a peremptory instruction should have been given the jury to find for the defendant. Hall testified for himself, placing the blame for the accident upon the second section. He then introduced on his own behalf the men in charge of the second section, and they all placed the blame for the accident upon him. It was the province of the jury to determine the credibility of the witnesses. They had a right to believe Hall if they saw fit to do so and disbelieve all the other witnesses. They saw and heard the witnesses, observed their demeanor on the stand and might believe one in preference to all the others. The rule is that where there is any evidence the case is for the jury, and in view of Hall's testimony we cannot say that there was no evidence to go to the jury.

While a scintilla of evidence is sufficient to take the case to the jury it does not follow that a scintilla is sufficient to support a verdict. The men in charge of the second section say they left Owensboro at 12:25 p. m. The collision occurred at 12:59, or 34 minutes later. Hall's testimony as to when they left Owensboro is as follows: "Q. When did you get out of there? A. 12 or 12:21. Q. What were you doing all this time at Owensboro? A. Waiting for a passenger train to pass there and then help move the second section out of the side track. Q. Was No. 64 late or on time that night? A. It was late, the two sections. Q. How much late? A. They were an hour and something late. Q. Who was the engineer on the second 64? A. Charlie Evans. Q. After you helped him out of the siding...