Louisville & N.R. Co. v. Henry's Adm'r

• Decision Date: 17 November 1933
• Citation: 252 Ky. 278,66 S.W.2d 818
• Parties: LOUISVILLE & N. R. CO. v. HENRY'S ADM'R.
• Court: Kentucky Court of Appeals

66 S.W.2d 818

252 Ky. 278

LOUISVILLE & N. R. CO. v. HENRY'S ADM'R.

Court of Appeals of Kentucky

November 17, 1933

Rehearing Denied Feb. 2, 1934.

Appeal from Circuit Court, Campbell County.

Action by Anna Laura Henry's administrator against Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Ashby M. Warren, of Louisville, and Matt Herold and Geo. J. Herold both of Newport, for appellant.

A. C Hall, of Newport, and Sawyer & Pichel, of Cincinnati, Ohio for appellee.

DRURY Commissioner.

The administrator of Anna Laura Henry recovered a $1,500 judgment for her death against the Louisville & Nashville Railroad Company, and it has appealed. This account of the accident is copied from appellee's brief: "Fourth Street in the City of Newport, Kentucky, is one of the main highways in said city. It runs east and west. Saratoga Street is another highway in said City over which the appellant owns and operates a line of steam railroad, and it runs north and south. The appellant, for many years prior to the accident maintained watchmen both day and night at said crossing. On the 9th day of May, 1930, about noon, Anna Laura Henry, a little colored girl, about eight years old, with some of her companions came from the Colored Public School, traveling on the easterly side of Saratoga Street southwardly to the northeast corner of Fourth and Saratoga Streets. When the little girl reached the intersection she was desirous to cross Saratoga Street and appellant's railroad tracks to proceed westwardly over Fourth Street to the home of her parents. At this time there was an engine and caboose of the appellant coming southwardly over the bridge, she then started running westwardly across the railroad track, and while proceeding in that course she was struck by the engine and knocked down and the engine ran over her crushing out her life. The little boy ahead of her escaped. Witnesses testified that at the time the little girl started across the street and the railroad track the watchman was absent from his post of duty to warn traffic of the approaching train. It is shown by a number of witnesses that the watchman was then just leaving his shanty. There is evidence of several witnesses that when the little girl started across the railroad track the watchman started 'hollering' at her and he then ran out in the street, all of this time he was 'hollering' and gesticulating with his hands and with the stop sign saying, 'go back, go back or you will be killed.' But at this time the little girl was at the west rail and about ready to step over to a place of safety, and at that time the engine was several feet away, while the little girl was at the point mentioned, ready to cross the west rail out of danger, the watchman then 'hollerin' and waving at her as though to strike her so frightened the little girl and placed her in such fear that she was caused to turn and retrace her steps toward the east side of the track and while so doing the engine struck and ran over her and caused her death."

For the purposes of this opinion we have accepted all of that as true, and that neither was the bell ringing or the whistle blowing, but the evidence shows the unfortunate girl and a number of schoolmates were running along beside the train or perhaps just a little ahead of it, and she had one of these companions by the hand, and the two were running together, and apparently were contemplating beating the train over the crossing, when her companion said to her, "We can't make it," and stopped. Anna Laura replied, "Yes, we can make it," and releasing her hold of her companion's hand started running, with the result noted above. There are two features upon which the unfortunate child's administrator rests his claim for recovery, which we shall consider; they are somewhat inconsistent, but we shall treat them as though entirely consistent and fully established.

The Absence of the Watchman.

If the watchman had been at his post, all he could have done would have been warn the child of the approach of the train, and this the child knew and was endeavoring to beat the train...