Louisville & N.R. Co. v. Logan's Adm'x

• Decision Date: 27 November 1917
• Citation: 198 S.W. 537,178 Ky. 29
• Parties: LOUISVILLE & N. R. CO. v. LOGAN'S ADM'X.
• Court: Kentucky Court of Appeals

198 S.W. 537

178 Ky. 29

LOUISVILLE & N. R. CO. v. LOGAN'S ADM'X.

Court of Appeals of Kentucky.

November 27, 1917

Appeal from Circuit Court, Hopkins County.

Action by Manson Logan's administratrix against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Laffoon & Waddill, of Madisonville, and Benjamin D. Warfield, of Louisville, for appellant.

Gordon Gordon & Moore, Letcher R. Fox, and Thomas E. Finley, all of Madisonville, for appellee.

CLAY C.

Mrs Elnora Logan, as administratrix of Manson Logan, deceased brought this suit against the Louisville & Nashville Railroad Company to recover damages for his death. From a verdict and judgment in her favor for $10,000, the company appeals.

Earlington is a city of 4,000 inhabitants, and certain shops of the Louisville & Nashville Railroad Company are located there. Along the eastern edge of the railroad yard, the St. Bernard Mining Company has a mine track which is located within a few feet of, and parallel to, the railroad company's main track. Connected with the mine track are certain switch tracks, and both the mine track and the switch tracks pass beneath the tipple of the mining company's No. 9 mine, which is situated within the limits of the city. On the day of the accident, two of the mining company's employés were engaged in letting down two coal "gons" to be loaded at the tipple. This was done by hitching two mules to the front end of the two cars and starting the cars down grade after the brakes had been loosened. The mules were then taken away and the cars would roll down of their own momentum. One of the employés was on the front end of the front car keeping a lookout, and the other had charge of the mules. While these cars were being moved, one of the railroad company's engines was backing towards the depot. According to plaintiff's evidence, the engine was moving rapidly; no warning of its approach was given, and those in charge of it were not keeping a lookout. John Tandy, who was some distance south, says that he saw the engine strike the decedent. His body was found on the mining company's adjoining track. The employés of the mining company say that he was not seen on the mining company's track prior to the accident, and that only the rear trucks of the rear car passed over him. There was further evidence to the effect that the place where decedent was struck was between the depot and the mining company's tipple, and that the depot was the business center of the town. The tracks from the depot to the tipple ran parallel with the public street on which were situated several residences. In the immediate neighborhood 600 or 800 men were employed. These men and their families used the track from the tipple to the depot not only as a walkway, but for crossing purposes.

According to the defendant's evidence, the bell on the engine was being rung as it approached the place of the accident. The decedent was not on the railroad company's track and was not struck by the engine. On the contrary, his body was seen under the coal company's cars before the engine reached the place of the accident.

1. In view of the fact that the judgment must be reversed for another reason, we deem it unnecessary to pass on the propriety of the trial court's refusal to grant the defendant a continuance on account of the absence of its witness Paul Moore, Jr.

2. Without reviewing the evidence at length, we conclude that there was sufficient evidence of the habitual use of the railroad company's track at the place of the accident by such a large number of persons, with knowledge and acquiescence of the company, as to make it a question for the jury whether the company owed decedent the duty of...