Louisville & N.R. Co. v. McCombs

• Decision Date: 09 December 1899
• Citation: 54 S.W. 179
• Parties: LOUISVILLE & N. R. CO. v. McCOMBS. [1]
• Court: Kentucky Court of Appeals

54 S.W. 179

LOUISVILLE & N. R. CO. v. McCOMBS. ^[1]

Court of Appeals of Kentucky.

December 9, 1899

Appeal from circuit court, Christian county.

"Not to be officially reported."

Action by Parker McCombs against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Joe McCarroll, Edward W. Hines, B. D. Warfield, and H. W. Bruce for appelant. J. T. Hanberry, Hunter Wood & Son, John Feland & Son, and T. L. Edelen, for appellee.

HOBSON J.

Appellee charges in this action that the servants and employés of appellant negligently and carelessly ran one of its passenger trains through the city of Hopkinsville at a very rapid and dangerous rate of speed, and that, as he was attempting to cross its track at a point which had been habitually used as a crossing by a large number of the citizens of Hopkinsville with the full knowledge and consent of appellant, he was struck by the train, and knocked down, and that the wheels passed over both of his legs, between his feet and knees mangling them to such an extent as to require their amputation. Appellant, for answer, says that the place at which appellee received the injuries complained of was not on any street or crossing of the city of Hopkinsville, but upon its private property; that at the time appellee was injured be was a trespasser; that his peril could not have been discovered by the exercise of ordinary care on the part of those operating its train in time to have avoided the injuries; and charges that, but for the contributory negligence on the part of appellee, the accident would not have happened. Appellant also denies that it was running its train at a dangerous rate of speed or in a reckless manner. The trial resulted in a verdict and judgment for appellee which we are asked to reverse for a number of alleged errors.

The testimony as to the facts which preceded the injury, as detailed by the witnesses for plaintiff and defendant, is so conflicting as to be entirely irreconcilable with any theory which can credit both with having testified truthfully. It is the contention of appellee that he was struck on the main track of appellant, as it passes through the city of Hopkinsville, in the square bounded by First street on the north, Second street on the south, Clay street on the west, and Vine street on the east, by the south-bound passenger train, which was traveling at the rate of from 25 to 40 miles an hour, due to arrive in Hopkinsville at 9:12 p. m. on the day in which the accident occurred; while it is the contention of appellant, on the other hand, that appellee was struck on the main track by a train consisting of an engine and three cars going backward, at not over 3 or 4 miles an hour, after the passenger train had passed. The testimony shows that the square of ground bounded by the aforesaid streets belongs to the railroad company, and that through this square they have four tracks. That next to Clay street is called a "side track," the next one the "passing track," the third the "main track," while the fourth, next to Vine street, is called the "stock track." On the night in question the side track, next to Clay street, was occupied by a dead freight train loaded with rock which was to be used for ballast. The second or passing track was occupied by the north-bound freight train, which consisted of an engine and 41 or 42 cars. This train had taken up this position on this track to await the passage of the south-bound passenger train, due to arrive at Hopkinsville at 9:12, but which did not stop at that point. The testimony shows that there was no break in the freight cars standing on the passing track between First and Second streets; that the engine, with three cars, was separated from the body of the train at First street; and that the train was also separated at Second street, and a number of the cars of the freight train occupied the passing track south of Second street, while the stock track, west of the main track, was occupied by the local freight. The uncontradicted testimony shows that there had been a footway across this lot and all of these tracks leading from Clay street to Vine, which was habitually used, with the knowledge of appellant, both in the daytime and at night, by citizens living east of the railroad on Vine street. It also shows that on the night of April 13, 1897, appellee, who is a barber and deaf-mute, left his place of business at about 9 o'clock to go to his home on Vine street, and that he crossed the square, following in the main the old pathway; that he passed the side track on which were located the cars loaded with rock, and that he also passed under or between that portion of the freight train which occupied the passing track, and, as he attempted to cross the main track, some 8 or 10 feet from the passing track, he was struck, knocked down, and run over, and his injury inflicted. Appellee testifies, through an interpreter, that before attempting to cross the main track he looked in both directions, and no train was in sight, but before he could get across he was struck by the passenger train, which was passing at a rapid rate. And appellee is supported in this statement by the testimony of Tom Owens, who says that he was sitting on one of the rock cars on the side track; that the north-bound freight train was on the passing track, between where he was and the main track; that he saw the passenger train pass at a rate of about 35 or 40 miles an hour; that soon after the passenger train passed by he heard a noise on the main track, and that he went under the freight cars on the passing track, over to the main track, and there found appellee lying on his back, with his crushed legs lying across the rail, trying to get up with his hands; that he and Isaac McRea and Jo Robinson, who came up at about the same time, lifted him up, and moved over to the stock track, and laid him down; that none of the railroad crew were present at the time, and that none of them arrived until after he had been changed from the main track to the stock track; and that, shortly after they removed appellee from his position on the main track, the engine and three cars backed into the main track, and passed down. The testimony of this witness is corroborated substantially by that of McRea and Robinson in every particular, and also by that of Mack Cravens, who says that he is a policeman, and who testifies that he was standing on the railroad crossing between Sixth and Seventh, near Wheeler's warehouse; that he saw the passenger train coming at a rate of 25 or 30 miles an hour; that he started to walk down the track, when he met Mr. Maddox, the freight conductor, who told him that a man was hurt down near the oil tank; that he went on down, and found appellee lying on the stock track; that when he got there he found Owens and one or two others present, but that no railroad men were there. He also testifies that the railroad train was still standing on the passing track, and that the engine did not back down on the main track while he was there; that the freight engine was at that time standing north of First street. This is, in substance, the testimony of appellee.

On the other hand, J. B. Harris, a brakeman on the freight train testifies that he was waiting on the First-street crossing with a lantern for the south-bound passenger train to pass; that it was not running at exceeding 8 or 10 miles an hour; that as soon as it passed the freight engine, with three cars belonging to the north-bound freight train, which was on the passing track beyond First street, began to move back onto the main track, and that not over three or four minutes passed after the passing of the passenger train before these cars arrived at that point on the main track where appellee was struck; that, as the engine and three cars backed up the main track, he walked up the track on the east side, considerably ahead of the train, and that he did not see appellee, and he was not present, but that after he had passed, and about the time the engine and cars arrived at the point where appellee was injured, he heard a noise, and that he immediately gave the signal to stop; that his attention was immediately attracted by seeing appellee rolling over from under the car; that he at once went up to him, and found him lying there, with both legs cut off; that he examined the wheels of the box car which was in front of the train, and that he found blood and flesh thereon, which were fresh; that a person could have come out from under the freight train standing on the passing track, after he passed, in time to have gone in front of the engine and three cars; and that at this time none of the witnesses of plaintiff were present. This testimony of Harris is fully corroborated by Maddox, the conductor, who testifies that he was walking up the track on the other side, in front of the backing cars, and that he had just started to go on top of the cars when he heard a cracking noise; and also by that of Robert Brown, another brakeman, who testifies that he was on top of the rear car that was backing, with a lantern; that he did not see anybody go onto the track, but that he heard a noise under the wheel, and saw Harris give the stop signal; that these cars did not pass over 30 feet; that he got down, and found appellee resting on his elbows; that none of the witnesses of plaintiff were present then, but that they came up afterwards; that Maddox had gone to notify the station agent before any of them arrived. The engineer and fireman of the passenger train and some four or five other witnesses state that it was running at not exceeding 10 miles an hour, the speed to which it was limited by regulation of appellant...