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

• Decision Date: 17 March 1900
• Citation: 55 S.W. 892
• Parties: LOUISVILLE & N. R. CO. v. SEIBERT'S ADM'R. [1]
• Court: Kentucky Court of Appeals

55 S.W. 892

LOUISVILLE & N. R. CO. v. SEIBERT'S ADM'R. ^[1]

Court of Appeals of Kentucky.

March 17, 1900

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by the administrator of Henry Seibert against the Louisville & Nashville Railroad Company to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

Yeaman & Yeaman, John W. Lockett, and Edward W. Hines, for appellant.

Clay &amp Clay, for appellee.

HOBSON J.

On September 21, 1897, Henry Seibert, who was a bridge watchman employed by appellant, on the bridge over the Ohio river at Henderson, was struck while on the trestle, approaching the bridge, by a train, and was so injured that he died a few days afterwards. Appellee, as his administratrix, then instituted this suit to recover damages of appellant for his death, alleging that it was caused by its negligence. The answer denied negligence on the part of appellant, and alleged contributory negligence by the deceased. At the conclusion of the evidence for the appellee, and on all the evidence in the case, appellant asked a peremptory instruction to the jury to find for it. This was refused by the court, and the propriety of this ruling is the first question to be determined on the appeal.

The approach to the bridge on the Kentucky side begins at Fourth street, in the city of Henderson, and extends towards the river, joining the main structure on the Kentucky shore at an elevation of about 30 feet. From this point the bridge proper extends for some 2,000 feet across the river to the Indiana shore. There it connects with another trestle, from 15 to 25 feet high, extending into the state of Indiana for 3 miles north of the northern terminus of the bridge. Upon the trestle, cages or platforms are constructed, about 400 yards apart, for persons employed upon the structure to get out of the way of passing trains, and large enough to receive the tricycle used by the watchman in going over it. Besides these platforms, about 100 yards apart, are smaller platforms, on which barrels of water are kept for use in case of fire. These platforms are large enough for a man to stand on, but not large enough to hold a tricycle. At the side of the track, and 15 feet apart, are caps about 16 inches square upon which a man can stand out of the way of the train. It was the duty of the intestate, as watchman, to go over the bridge and trestles after each train, to note their condition and report if anything was wrong. To enable him to perform that duty, he was provided by appellant with a tricycle which fitted the rails of the track, and was easily lifted on or off it. At 1:25 p. m. on the day the intestate was injured, a train went over the bridge, going north. As it was his duty to do, he followed this train, on his tricycle, to note the condition of the bridge and trestles. There were no more regular trains due at Henderson, going north, until 5:05 p. m.; but there was a belated freight train, which was due there at 8:05 a. m. that day, and had not arrived. There was also a passenger train coming south, due to arrive at Henderson at 2:36 p. m. The intestate passed over the bridge and was going along the trestle on the Indiana side, watching it, and with his attention, perhaps, especially directed northward for the south-bound train, due in a few minutes, when the belated freight train approached him in the rear. The testimony for the appellee tends to show that when the freight train was about a mile from the intestate he looked back and saw it; that he was then a few feet north of one of the cages, on which he might get off with his tricycle; that he looked back, and made a signal to the train by waving his hand, and then began pulling as fast as he could for the next cage, but when he got within about 35 feet of it was either knocked from the track by the train, or jumped off to avoid being struck. It was a straight track, and in daylight there was nothing to prevent those in charge of the train from seeing the peril in which the intestate was placed. The trestle at this point was about 25 feet high. According to the testimony for appellee, the whistle was not...