Louisville & N.R. Co. v. Cook

• Decision Date: 07 February 1919
• Parties: LOUISVILLE & N. R. CO. v. COOK.
• Court: Kentucky Court of Appeals

210 S.W. 661

183 Ky. 773

LOUISVILLE & N. R. CO. v. COOK.

Court of Appeals of Kentucky.

February 7, 1919

Rehearing Denied April 22, 1919.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Edward R. Cook against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Moorman & Woodward, Benjamin D. Warfield, and James J. Donohue, all of Louisville, for appellant.

Elmer Underwood, of Louisville, for appellee.

CLAY C.

In this action for personal injuries, plaintiff, Edward R. Cook recovered of the defendant, Louisville & Nashville Railroad Company, a verdict and judgment for $5,500. Defendant appeals.

The only question we deem it necessary to consider is whether the trial court should have sustained defendant's motion for a peremptory instruction. The evidence is as follows:

Plaintiff lived on Dumesnil street, in the western part of the city of Louisville. On Saturday evening, November 4, 1917, plaintiff left his home and reached Eighteenth and Dumesnil streets about 7:30 o'clock. There he caught a car for Eighteenth and Market streets. He then went to a saloon at Fifteenth and Market, where he was joined by Joe Thorp. After stopping at certain saloons and taking several drinks of beer, they went to a flat at 136 West Market. According to Thorp, it was then about 10:20 p. m. They were invited into the kitchen, and Cook drank two bottles of beer. Later on they went into the parlor, where Cook drank some whisky. In about 30 minutes Cook became so intoxicated that he did not remember anything that subsequently occurred. Thorp says that they left the house about 12:20 a. m. After going downstairs, Thorp asked Cook to wait until he went back to say something to one of the women. Thorp was gone for only a minute or two, and when he returned Cook had disappeared. At that time, Cook was drunk and staggering. Failing to find Cook, Thorp assumed that he had taken a car and gone home. About 5 o'clock the next morning Cook was found by some railroad men on Fulton street, between Jackson and Preston streets. Fulton is a public street of the city, and is paved with granite blocks from curb to curb. Defendant's track is on the north side of the street. Though there is no paved sidewalk on this side of the street, there is a beaten path lying between the curbstone and the defendant's track. There were weeds along this pathway, and also along the defendant's track.

Only two engines are shown to have passed over this track on the night of the accident. Engine No. 341 passed by itself about 11:05 p. m. en route to the Barrett Manufacturing Company and returned about 11:15 p. m. with two cars attached. Engine No. 2023, with seven cars attached, passed some time between 2 a. m. and 2:30 a. m., and returned with several cars some time between 4:30 a. m. and 5 a. m. On their return the crew heard some one call. The engine was stopped, and they discovered Cook lying between the track and the north fence with both legs badly mashed and some cuts on his head. Cook was then taken to the city hospital, where his legs were amputated. On the first trip made by engine No. 2023, the headlight was burning and the speed of the engine was from four to six miles an hour. There was some evidence that the bell was not ringing, and very slight evidence that a proper lookout was not kept. Plaintiff was not seen by anybody after he left Thorp at 136 West Market. He did not remember how he got to the place of the alleged accident, or where he was, or under what circumstances he was struck. Prior to the time he was found, he regained consciousness several times, but only for a short period. The...