Louisville & N.R. Co. v. Williams' Adm'r

• Decision Date: 18 May 1917
• Citation: 194 S.W. 920,175 Ky. 679
• Parties: LOUISVILLE & N. R. CO. v. WILLIAMS' ADM'R.
• Court: Kentucky Court of Appeals

194 S.W. 920

175 Ky. 679

LOUISVILLE & N. R. CO. v. WILLIAMS' ADM'R.

Court of Appeals of Kentucky.

May 18, 1917

Appeal from Circuit Court, Hart County.

Action by Albert Williams' administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Watkins & Carden, of Munfordville, Sims & Rodes, of Bowling Green and Benjamin D. Warfield, of Louisville, for appellant.

H. L James, of Elizabethtown, and C. B. Larimore, of Munfordville for appellee.

CLAY C.

Albert Williams, a section hand in the employ of the Louisville &amp Nashville Railroad Company, was struck by one of its trains and received injuries from which he subsequently died. His administrator brought this suit under the Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, c. 149, Comp. Stat. 1916, § 8657 et seq.), as amended by the act of April 5, 1910 (36 Stat. at L. 291, c. 143), to recover damages for his conscious pain and suffering during the period intervening between his injuries and death, and for the pecuniary loss sustained by the dependent members of his family on account of his death. The jury returned a verdict in favor of plaintiff for $10,000 of which $7,000 was apportioned to decedent's widow, and $1,000 each to his three infant children. Judgment was entered accordingly, and the railroad company appeals.

Briefly stated, the facts are as follows: Appellant's line of railroad extends from Cincinnati, Ohio, through Kentucky, to New Orleans, La. Its track, which runs through Hart county the place of the accident, is used both for interstate and intrastate traffic. At the time of his death decedent was 36 years of age, and his family consisted of his wife and three infant children, whose ages ranged from 2 to 15. About 17 years before the accident he was employed by a railroad at Indianapolis for a period of about 5 days. Since that time he had been engaged in farming and sawmill work. He went to work for appellant as a section hand on Saturday, October 2, 1915, and worked that day. He was regarded as a green hand. He did not work on the following Monday because of the illness of his child. The next day, which was October 5th, he reported for duty, and went with the other section hands from Rowletts to mile 77, where they were employed in "smoothing" the track. After working at this point for 20 or 25 minutes they went to mile 79 to unload two cars of ties, which were being brought from Rowletts to be used in the track. When mile 79 was reached, the crew, including Williams, proceeded to "smooth" the track at that point, when the train bringing the ties approached. The members of the crew were in charge of a foreman, whose duty it was to select the place where the crew should unload the ties. At this juncture the train, which gave numerous signals of its approach, drew near, and the members of the crew scattered along the east side of the track to let it pass. They continued, however, to walk south with their backs to the train, which was going in the same direction. At that time Higginbottom, the foreman, was in front, and was followed by Mansfield, Cole, Williams, Smith, Coats, and Potter, in the order named. After proceeding in this order for about a rail's length, Mansfield, a witness for plaintiff, says that Higginbottom, the foreman, jumped on the track, and, without addressing any one in particular, said, "On this side," and then went to the west side. At that time the men were not over 5 or 6 feet apart, and all within about a rail's length of each other. Coats, another witness for plaintiff, says that when Higginbottom stepped on the track he said, "On west side." When Higginbottom did this he turned and looked at all the men, but did not address any one in particular. When the order was given the train was from 200 to 300 feet distant. Higginbottom stepped to the west side, and was followed immediately by Mansfield and Cole. For some reason decedent did not start across when the order was given, but hesitated for a perceptible interval of time, and when he did start across the train was only one or two rails distant. Mansfield says that he and Higginbottom had plenty of time to cross, and that decedent himself could have crossed if he had started when the order was given. Coats also says that the decedent was a "slow kind of a fellow anyhow," and if he had started with the others it looks like he ought to have gotten across. When decedent stepped upon the track in front of the approaching train it was moving at from 6 to 9 miles an hour. He did not go immediately across the track, but for some reason became confused,...