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

• Decision Date: 23 November 1926
• Citation: 216 Ky. 708,288 S.W. 668
• Parties: LOUISVILLE & N. R. CO. v. ISON'S ADM'R.
• Court: Kentucky Court of Appeals

288 S.W. 668

216 Ky. 708

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

Court of Appeals of Kentucky.

November 23, 1926

Appeal from Circuit Court, Letcher County.

Action by Stephen Ison's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded, with direction.

Woodward Warfield & Hobson, of Louisville, Morgan & Harvie and Fields Day & Fields, all of Whitesburg, and C. S. Landrum, of Lexington, for appellant.

R. Monroe Fields, of Whitesburg, for appellee.

SANDIDGE C.

Appellee, Stephen Ison's administrator, recovered judgment in the Letcher circuit court against appellant, Louisville & Nashville Railroad Company, for $2,500, in an action against it for the death of his intestate, alleged to have been caused by its negligence.

Appellant insists that the trial court erred in refusing to peremptorily instruct the jury to find for it at the close of appellee's evidence and at the close of all the evidence. It is conceded that appellee's intestate was a trespasser upon appellant's right of way, and that therefore those in charge of its train which ran over and severed intestate's head from his body owed him no duty except to use ordinary care to prevent injury to him after discovering his peril. The engineer in charge of the train was introduced as a witness for appellee. He testified that the train was composed of the engine, tender, three loaded freight cars, and a caboose. It was about 7:20 o'clock p. m., September 11, 1924, and dark. The following quotation embodies all of the testimony found in the record tending to establish negligence upon the part of appellant after the peril of appellee's intestate was discovered, or when if at all his peril was discovered before he was killed:

"Q. How was the track immediately south or down the creek from where this man was run over, whether it was a straight track or not? A. It was a slight curve; we come off of a slight curve just before we run over the body.

Q. How far from the body? A. I would say about 80 or 90 feet.

Q. 80 or 90 feet. A. Yes, sir.

Q. Did you see this man before you run over him? A. I saw an object on the track that afterwards I suppose proved to be the man.

Q. Did you know what the object was? A. No, sir; I couldn't tell in that short distance I had to see him what it was.

Q. What did you take it to be? A. Well, I was debating in my mind what it might have been, the possibility of its being some form of stock, or possibly a hog or dog, or maybe a few blocks of coal or some cinders; I was debating that in my mind.

Q. You first saw it when you were 80 or 90 feet away from it? A. Yes, sir."

He testified further that he did not blow the whistle or ring the bell or apply the brakes in an effort to stop the train until after the engine had run over the object which he had seen, when, smelling the odor of whisky, he thought possibly it was a man. He then stopped the train and upon investigation found appellee's intestate had been run over, and that his head had been severed from his body. A broken bottle found where he had been accounted for the whisky odor. Appellee introduced other testimony, which he insists was sufficient to establish that the train in question, traveling at the rate of speed, 12 miles per hour testified to by the engineer, could have been stopped in approximately 50 feet. Hence it is insisted for appellant that the evidence authorized the submission of this case to the jury and supports the verdict returned. The cross-examination of the engineer developed that the object which he saw, concerning which he testified for appellee, as above quoted, was lying down on the railroad between the rails. Three witnesses testified for appellee that they passed his intestate shortly before he was run over and that he was then sitting on the right rail of the track as they were proceeding, with his feet between the rails, bent over with his hands on his legs and his head on his hands. The testimony of one of those witnesses established that he had been drinking shortly before that. One of them estimated the time that elapsed after they passed him before the train ran over him at 10 or 15 minutes, another at 5 or 6 minutes, and the other at a "few minutes." The testimony establishes then that it was night; that the train came off of a curve; and that when about 90 feet from him the engineer discovered an object on the track. He testified that he did not know what it was and in the short distance and time he could see it he could not tell what it was. The evidence from the witnesses for appellee that when they passed him appellee's intestate was sitting on the rail does not tend in the least to contradict the...