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

• Decision Date: 24 February 1920
• Citation: 187 Ky. 601,219 S.W. 1047
• Parties: LOUISVILLE & N. R. CO. v. SPICER'S ADM'R.
• Court: Kentucky Court of Appeals

219 S.W. 1047

187 Ky. 601

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

Court of Appeals of Kentucky.

February 24, 1920

Rehearing Denied April 20, 1920.

Appeal from Circuit Court, Lee County.

Action by Granville Spicer's administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sam Hurst and G. W. Gourley, both of Beattyville, and B. D Warfield, of Louisville, for appellant.

Kelly Kash, of Irvine, C. C. Turner, of Frankfort, Ezart Ashcraft of Heidelberg, and J. M. McDaniel, of Beattyville, for appellee.

SAMPSON J.

Granville Spicer was killed by a passenger train of the Louisville &amp Nashville Railroad in Lee county, near Old Landing Station in July, 1917. Shortly thereafter his administrator instituted this action against the railroad company to recover damages for the loss of his life, and on a trial the jury awarded the estate the sum of $6,000. Judgment being entered upon the verdict, the railroad company appeals.

The evidence shows without contradiction that appellee's decedent was lying in a helpless, drunken condition between the rails on the railroad track, and was run over and killed by a passenger train of appellant; that the train after coming around a curve was on a straight track for about a quarter of a mile before coming in contact with the body of the deceased; that both the engineer and fireman in charge of the engine which pulled the train were looking ahead along the track for some 300 or 400 yards before the train reached Spicer, and the engineer, seeing an object on the track, said to the fireman, "I believe that is a man," or, "It is a man," but at what point the train was at the time this statement was made by the engineer is involved in much doubt, because the evidence of these two witnesses is not clear. From part of their testimony it would appear that at the time they saw the object on the track and the engineer made this remark the engine was some 200 or 300 yards away from the object. But from other parts of the evidence it would seem that the engine was only about 150 feet away from the object at the time the engineer made this remark and began to put on the brakes. It satisfactorily appears that the engineer did not begin to put on the brakes until the engine was within 150 feet of the object. There is evidence in the record, however, tending strongly to show that the engineer gave a danger signal by shrill blasts from his engine several hundred feet before the engine reached Spicer, and the engineer and fireman both testified that these warning signals were given at the time they first discovered the object on the track to be a human. The only difference between the engineer and fireman and other witnesses upon this subject is that the former stated that the warning signals were not given until the train had come within about 150 feet of Spicer, while other witnesses who saw the unfortunate accident testified that the warning signals were given some 200 yards or more away from Spicer. The train was going at about 30 miles an hour, and was stopped in about 450 feet, so that if, when the engineer saw the object on the track and made the statement, "I believe that is a man," or, "it is a man," he had applied the brakes and used such means as were reasonably within his reach to have avoided injury to Spicer, no injury would have occurred, if that discovery was made by the engineer and fireman at a point more than 450 feet before the train reached Spicer. If the evidence of certain witnesses introduced by appellee be accepted, the object on the track was discovered by the engineer and fireman to be a man more than 450 feet from the place of injury; but if we accept a part only of the evidence of the engineer and fireman it seems that the discovery was made only 50 yards distant from the object, and therefore the train was too close to have avoided injury to him by the exercise of ordinary care on the part of the engineer, and the railroad company would not be liable.

It being admitted by appellant company that those in charge of the train could see an object on the track the size of a human being for the distance of 350 or 400 yards, and further, that both the engineer and fireman were keeping a lookout...