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

• Decision Date: 12 April 1916
• Citation: 169 Ky. 435,184 S.W. 371
• Parties: LOUISVILLE & N. R. CO. v. TAYLOR'S ADM'R.
• Court: Kentucky Court of Appeals

184 S.W. 371

169 Ky. 435

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

Court of Appeals of Kentucky.

April 12, 1916

Appeal from Circuit Court, Gallatin County.

Action by John C. Taylor's administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with direction to grant defendant a new trial.

Robt. B. Brown, of Warsaw, and Benjamin D. Warfield, of Louisville for appellant.

Botts &amp Perry, of Owenton, for appellee.

TURNER J.

On May 17, 1913, appellee's intestate, John C. Taylor, a man 68 years of age, was struck at or near Sparta, in Gallatin county, by one of appellant's fast north-bound passenger trains and killed. In this action by his administrator for damages because of the alleged negligence of appellant which caused his death a verdict for the plaintiff for $2,000 was returned, upon which judgment was entered, and the company has appealed. As we have concluded that the directed verdict asked for by appellant should have been given on the trial below, it is unnecessary to consider any other question.

At the point of collision there were two railroad tracks running parallel with each other, the main track upon which the north-bound train was running and a switch track. At that place the center of the switch track was 13 feet from the center of the main track, which left a space of something over 7 feet between the east rail of the main track and the west rail of the switch track. Just before the accident the decedent was walking south between the two tracks, and nearer to the switch track, and the train was coming north, so that he was facing it. There was a curve south of the point of collision around which the north-bound train came, and from the place where decedent was struck a train could be seen for a distance of 594 feet as it came around that curve. The decedent at the time was staying at the house of his son-in-law, which was only a short distance west of the main track, and there was a pathway leading off from the main track to this house. As he walked south in between the two tracks the main track was between him and the house of his son-in-law, to which place he was evidently bound.

The plaintiff on the trial did not introduce any witness who saw the train strike the decedent, but did introduce one witness who saw the decedent just before the accident walking south between the two tracks, and whose evidence is entirely in harmony with the evidence of the only eyewitness to the collision subsequently introduced by the defendant.

The engineer, who occupied a position in his cab on the outside of the curve, did not see the decedent at all, but the fireman, who was maintaining a lookout from his side on the inside of the curve, being the only eyewitness to the collision, testified that after they came around the curve he saw the decedent walking south between the two tracks in a place of perfect safety and on the east side of the main track, but that for an instant his view was obstructed by the front of the engine, and when he again saw the decedent he was on the west side of the main track right at the rail, and the...