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

• Decision Date: 26 April 1918
• Parties: LOUISVILLE & N. R. CO. v. SEELEY'S ADM'R.
• Court: Kentucky Court of Appeals

202 S.W. 638

180 Ky. 308

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

Court of Appeals of Kentucky.

April 26, 1918

Appeal from Circuit Court, Laurel county.

Action by Elmer Seeley's administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Geo. G Brock and H. J. Johnson, both of London, and Benjamin D Warfield, of Louisville, for appellant.

Hazlewood & Johnson, of London, for appellee.

SAMPSON J.

This action by the administrator of Elmer Seeley against the Louisville & Nashville Railroad Company was instituted in the Laurel circuit court on the 4th of April, 1914, to recover for the death of Seeley under the federal act. The deceased was only a little more than 18 years of age at the time of the accident and his death. He was a citizen of Laurel county, but the accident happened in Pendleton county on the main line of the Louisville & Nashville Railroad from Cincinnati to the South, and the train which struck and killed him was engaged in interstate commerce. Seeley had been engaged as a section hand by the railroad for only a few days before his death, and on the afternoon before the night on which he was struck and killed he had been engaged at his regular employment, tamping ties. While thus engaged he was notified by the foreman that he and another man by the name of Ledford, an acquaintance of Seeley's would be required to patrol a certain section of the track that night and watch for slides or slips from the mountain side onto the track, and in case of such accident remove the slide, if possible, and, if not, signal the train and call a sufficient force to remove the obstruction. The distance to be patrolled was something near a mile and was between the mountain and Licking river, and very close to each. About dark that night Seeley and Ledford were provided with two white lanterns and one red lantern, a shovel each, and other implements, and were sent to perform the patrol duty. They went to what they thought was the middle of the distance to be patrolled, and there built a fire, as the night was cold and wet. Ledford agreed to patrol the south end of the track from the fire, and Seeley the north end. Accordingly they started out, each on his part of the beat, carrying a lantern and tools, and made a round trip inspecting the track and looking out for trains. In about 30 minutes they met again at the fire, and after warming a while made a second trip, and so on through the night up to about 12 o'clock. About midnight they were at the fire warming, and again decided it was time to make another trip, and Ledford started on his south course, and, as he says, Seeley on his north trip. In the usual course Ledford returned to the starting point at the fire, and on approaching that point he observed Seeley seated or hunkered down on the south bound track in about 2 or 3 feet of the fire, his head down, and a train from the north, running at the usual rate, approaching and in about 30 or 40 feet of Seeley. At this time Ledford was about 15 or 20 feet distant from Seeley, and shouted a warning to him, to which Seeley gave no heed, and, seeing his great peril, Ledford undertook to snatch Seeley from the track, and jumped to do so, but as he reached him the train struck Seeley and threw both men into the air, inflicting injuries upon Seeley from which he shortly thereafter died. The train, a double-header, passed on without stopping, and it is in evidence that the crew did not know of the injury and death of Seeley until it reached Cynthiana, some 30 miles distant. Before the night of the injury the railroad company had experienced more or less trouble with slides on the track near the point in question, and had frequently placed patrols there to watch for obstructions and to warn trains of the approach in case one came. However, this was the first night on which the deceased, or Ledford, had been called upon to perform this patrol duty. The train crew knew the fact that slides frequently interfered with the passage of trains at that point, and that persons were frequently there, especially in rainy, bad weather, such as the night in question, to patrol the track and warn approaching trains in case of an obstruction on the track. Whether Seeley was asleep at the time of his injury is not certain; neither do we know whether he had made a round trip upon his beat at the time Ledford made his last round trip, because it is stated by Ledford that Seeley was sitting hunkered down apparently asleep when he first saw him on approaching the fire, and further that on former trips they had arrived at the common meeting point about the same time.

It is manifest from the evidence that no one upon either of the engines in the freight train which struck Seeley saw or knew of the presence of Seeley on the track at the time or before his injury; it was a dark night; the fire built by Ledford and Seeley was blazing up fairly well at the time Ledford left it to go on his trip, which occupied about 20 or 30 minutes, and was yet blazing and giving off more or less light upon his return at the time of the accident.

Upon these facts the appellee, administrator of Seeley, insists that it was the duty of the railroad company and its servants in charge of the train which struck and killed the deceased to keep a lookout ahead for persons upon the track at the point where the watchmen were to be reasonably expected on the night in question, and to exercise ordinary care to avoid injury, to the patrols, including Seeley, and this view was adopted by the trial court in its instructions to the jury, and this is the chief complaint of the railroad company upon this appeal. However, this is not the only complaint made, the others being: (1) That the petition, as amended, does not state a cause of action; (2) the court erred in rejecting competent evidence for the defendant and admitting incompetent evidence for the plaintiff; (3) the evidence does not support the award of damages to the appellee for the deprivation of pecuniary benefits, and especially that awarded to the mother.

The jury returned a verdict for $2,000 of which $1,000 was awarded to the father and $1,000 to the mother of Seeley. In connection with the complaint that the court improperly instructed the jury, it is earnestly insisted by appellant that the jury should have been peremptorily...