Louisville & N.R. Co. v. Reynolds' Adm'r
| Decision Date | 23 October 1931 |
| Citation | 42 S.W.2d 911,240 Ky. 662 |
| Parties | LOUISVILLE & NASHVILLE R. CO. v. REYNOLDS' ADM'R. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County.
Action by Walter Reynolds' administrator against the Louisville & Nashville Railroad Company and another. From an adverse judgment, the named defendant appeals.
Reversed.
Cleon K. Calvert and J. G. Bruce, both of Pineville, B. M. Lee, of Harlan, Ashby M. Warren, of Louisville, Low & Bryant, of Pineville, and J. C. Baker, of Harlan, for appellant.
Pope & Huff, of Harlan, and Jas. M. Gilbert, of Frankfort, for appellee.
The Louisville & Nashville Railroad Company has appealed from a $6,000 judgment recovered against it by the administrator of Walter Reynolds for the alleged negligent killing of his intestate.
A few minutes after 8 o'clock Sunday morning, November 3, 1929 Walter Reynolds, an 11 year old boy, while attempting to crawl under and between two loaded coal cars, was caught when the cars started, and his left arm and left leg were cut off, from which injuries he died shortly thereafter.
This accident occurred in a mining camp called Kenvir, one of the operations of the Black Mountain Corporation. This camp and these operations are located in the narrow mountain valley of Yocum creek. They are about 2 1/2 or 3 miles in length, and of varying but never very great width. At the point where this accident occurred the railroad tracks run approximately east and west. There is a main track, and parallel with and near it and each other two storage tracks.
There were a number of gondolas loaded with coal on these storage tracks that had been there for about 17 hours. There were 41 of these on the storage track next to the main track, but how many were on the other storage track does not appear. About 300 feet east of the place of this accident there is a public road crossing, which all the evidence shows was then unobstructed by these cars or anything else. At the west end of this yard was an engine and scattered along these 41 cars a train crew that had been there for some 40 minutes engaged in coupling these loaded cars together, connecting the air and arranging for their removal.
The Black Mountain Corporation has upon the north side of these tracks a building wherein it conducts a barber shop, pool room, and lunch stand, managed by two of its employees, R. H. Ladd and Grover Adams, the latter working under the former. As Grover Adams came to this place of business on this morning, he was joined on the way and thereafter accompanied by two little boys, his brother Sebree Adams and the little fellow who was later killed, Walter Reynolds. When they reached this building, they found it was closed and the door locked. They knew Mr. Ladd, who lived about 500 feet south of these tracks, had these keys, and the boys volunteered to go after them. After they got these keys, they started back to the lunch room. There was a public road leading eastwardly about 500 feet to a public crossing, which the proof shows was then unobstructed, and that crossing led to another road running westwardly, by traveling which, for about 350 feet, they would have come to the lunch room. Directly across, from the Ladd residence, it is only about 500 feet to the lunch room, but this route was obstructed by these loaded cars standing on these storage tracks. The boys chose to go the latter route. Between Ladd's house and these storage tracks, they crossed the road we have mentioned, then followed the path that crosses a small stream that parallels these tracks, over which stream there is a footbridge. This path then leads east to the scale house, but the boys turned to the west, went along beside these loaded cars for about 20 feet, then started to go under them. They had crossed the first storage track in safety. Walter Reynolds received his injuries in attempting to cross under the cars standing on the second storage track; that is, the one next to the main track. The only eyewitness to the accident was Sebree Adams, the little boy, of about the same age, who was with him and here is what he says of it.
"Q. You heard trains pull out, did you not? A. Yes, sir.
Q. Do you know what kind of noise they make? A. Yes, sir.
Q. Did you hear any noise like that when Walter stepped under the car? A. Yes, but we thought it was on the other track.
Q. What did Walter say to you, if anything, about that noise? A. He said, "Let's hurry and get through before the train gets up here."
"Q. How far behind Walter were you when he said that and tried to go under the train? A. I was about where you are at.
Q. Two or three steps behind him? A. Yes, sir.
Q. When you came down before you got to the train, do you remember a little bridge that passed Mrs. Hooker's house. A. Yes.
Q. You remember the little bridge there as you came from Ladd's. A. There was no bridge, just some planks.
Q. Isn't there a little bridge there? A. Yes, sir.
Q. Do you remember crossing over that when you went back to the restaurant? A. We crossed the planks.
Q. How did you travel, as you crossed over, do you remember whether you walked or ran? A. Walking.
Q. You did pass over the little bridge past Mrs. Hooker's house before you got to the planks that leads across the ditch, didn't you? A. Yes, sir.
Q. Who was carrying the key? A. Walter.
Q. When you got to the end of the planks there was a path leading up towards the tipple, was there not? A. I don't know.
Q. There is a path right at the end of the planks? A. Yes, sir.
Q. But you and Walter did not turn up that way towards the scale house but climbed up on the railroad track? A. Yes, sir.
Q. When you crossed over these two planks instead of turning up the path towards the scale house, you climbed up on the railroad? A. Yes, sir.
Q. When you crossed the end of the plank next to the railroad, did you go straight to the track or turn to the right or the left? A. Turned to the left.
Q. How far down the road did you go before you--before he went under the car? A. We went a little piece.
Q. How far did you travel from the end of the plank down this way before he started under the train? A. Two or three feet.
Q. Do you remember anything Walter said to you other than what you said about crawling through? A. He said "Let's get through before the train gets up."
Q. Do you remember him saying anything else? A. No, sir.
Q. How close to the wheels did Walter start crawling under the train? A. Right under it.
Q. Which wheel caught him, the wheel next to the side you were on or the wheel on the other side? A. The side I was on.
Q. Then he had just started under the car and it caught him right under the first wheel, is that right? A. Yes, sir.
Q. When you left Ladd's house coming back you crossed over the county road, did you not? A. Yes, sir.
Q. When you came out of Ladd's house you had to cross over the county road? A. Yes.
Q. And that road led right along the tracks up to the scale house? A. Yes, sir.
Q. You knew there is a path along the side of the railroad leading up towards the scale house? A. Yes, sir.
Q. When you came from Ladd's house, past the club house, across the little bridge, you did not go in the path going towards the scale house but you left that path and started across the tracks and started to crawl under the cars? A. Yes, sir.
Q. That is when Walter told you "Let's hurry and get through before the train gets up here?" A. Yes, sir.
Q. Now, Sebree, you told the jury in answer to a question that you thought it was train coming up the main track somewhere--Did you and Walter think the train was coming up the main track? A. Yes, sir.
Q. State to the jury if you play with the children at Kenvir and have been for four or five years? A. Yes.
Q. Tell the jury whether or not during the last four or five years before school opened mornings and after school closed in the evening there were or were not children playing on these tracks in front of the clubhouse and the restaurant and these other business houses and it was a common thing for boys about your size to be crossing these tracks when they wanted to. A. Yes, sir.
Q. You knew it was dangerous to play on the railroad track did you not? A. No, only when the train is there.
Q. Have you been told by anybody not to play on it? A. No.
Q. Let me see if I understand what you mean by train--tell the jury what you mean by saying you did not think it was dangerous when there was no train on the track. A. I mean the engine.
Q. That is what you call a train--the engine? A. Yes, sir."
Another witness who was near to the place of this accident, saw and heard these children just before the Reynolds boy was hurt, and she says this:
This is the evidence of this little boy when called in rebuttal.
The remainder of the evidence for the plaintiff is devoted to showing there was no blowing of the whistle or ringing of the bell to indicate these cars were going to be moved; to an effort to show there was a path that led across these tracks at or near the point where this boy was run...
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