Louisville & N.R. Co. v. Schuster

• Decision Date: 07 April 1888
• Citation: 7 S.W. 874
• Parties: LOUISVILLE & N. R. CO. v. SCHUSTER.
• Court: Kentucky Court of Appeals

7 S.W. 874

LOUISVILLE & N. R. CO. v. SCHUSTER.

Court of Appeals of Kentucky.

April 7, 1888

Appeal from court of common pleas, Jefferson county.

Nathan Schuster by his next friend, brings an action to recover damages for personal injuries against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff. Defendant appeals.

Barnett Noble & Barnett, for appellant.

Brown Humphrey & Davie, for appellee.

HOLT J.

The appellee avers that, through the gross negligence of those in charge of it, a train of the appellant ran over him, crushing both of his legs, in consequence of which they had to be amputated. The answer merely denies the negligence. There is no plea of contributory neglect upon the part of the appellee. It is affirmative matter of defense, and, if relied upon, must be pleaded. Even a verdict will not cure a failure to do so, because, while it may aid a defective plea, it will not avail if there be no plea. Moreover, in this case there were special findings; and, among them, the jury found that notwithstanding the want of ordinary care upon the appellee's part when he was injured, those in charge of the train could, by the exercise of ordinary prudence upon their part, have prevented it. The jury found that the proximate cause of the injury was the lack of ordinary care upon the part of the appellant. In such a case it is a well settled rule in this state that the injured party can recover. Commencing with Railroad Co. v. Yandell, 17 B. Mon. 466, if not earlier, there is an unbroken line of cases down to Railroad Co. v. McCoy, 81 Ky. 404, and, indeed, some later, so holding. The only question, therefore, involved here, is whether the appellant was guilty of such neglect.

The accident happened upon that portion of its road between Bear Grass creek and its depot in the city of Louisville, and within the corporate limits of the city. At the immediate point where it occurred there is a heavy fill, from 20 to 30 feet high, and about 23 feet wide at the top. Upon it are two tracks, with some seven or eight feet of space between the inside rails of each. Buchanan street has been constructed to within from 150 to 200 feet of this fill upon its south side. Many people live and work in that vicinity. Indeed, it is a part of the city, and appears, for the most part, to be thickly peopled. There are therefore many persons passing about and along and across the appellant's road at that point. There are other streets, not far from Buchanan street and running in the same general direction, and which are connected with it by cross-streets, that have been built across the railroad. The only way to cross it, however, from Buchanan street, in a course continued like that of the street, is to follow a pathway leading from the end of it to the railroad embankment, and thence up it onto the railroad track, from whence, after passing along and across it diagonally for a few steps, you descend upon the north side by means of a footway. The appellee, who was then but 15 years old, had been peddling matches in another part of the city, and late in the afternoon was on his way home. He came down Buchanan street in company with another boy, and at the end of it they pursued the footpath, and climbed up the embankment, for the purpose, probably, of going down the path upon the other side, and in that way reaching home. They started along the track upon the south side of the embankment; but, as a train leaving the city upon it was nearing them, they left it, and stepped upon the track upon the north side. Owing, doubtless, to their attention being drawn to the outgoing train, they failed to discover that an incoming train was behind them, and upon the same track upon which they now were. It was coming at the rate of about six miles an hour upon a down grade. It had come in sight of them around a curve a short distance from them, but far enough off to have enabled those in charge of it to have kept it from running over the appellee, if they had seen him. The out-going train had just passed them, or was in the act of doing so, when the in-coming train came upon them, striking the appellee, while his companion jumped from the track, and thus escaped injury. The special findings are that the appellee was injured by the appellant's engine, when in charge of its employe, and near the mouth of Buchanan street, and within the...