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

• Decision Date: 10 March 1892
• Citation: 18 S.W. 944
• Parties: Louisville & N. R. Co. v. Shivell's Adm'r.
• Court: Kentucky Court of Appeals

18 S.W. 944

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

Court of Appeals of Kentucky.

March 10, 1892

Appeal from circuit court, Marion county.

"Not to be officially reported."

Action by the widow of Charles Shivell, as administrator of his estate, against the Louisville & Nashville Railroad Company to recover damages for the death of the deceased. Plaintiff obtained judgment, and defendant appeals. Affirmed.

Holt C.J.

The draw of a bridge over the Alabama river upon appellant's road had been taken out for repair, and false works had been erected upon piles to enable its trains to cross. A large lot of drift-wood had lodged against these works and the pier of the bridge. This, together with a rise in the river endangered the bridge. The deceased, Charles Shivell, who was then in the employ of the appellant as a bridge carpenter was, together with some 15 or 20 other employes, directed by the superior agents of the appellant to go upon the drift for the purpose of removing it. They did so by means of a ladder, which rested against the false works. After working for two days without intermission, the drift was unmoved. Upon the third day it was the belief of those in charge of the work that the bridge, or, at least, that part of it against which the drift had lodged, could not be saved, and Shivell told his foreman he believed there was danger in going upon the drift, but was assured by him to the contrary, in his opinion. Ropes were fastened to the drift, then carried to pulleys upon the bridge, and then fastened to a locomotive, one being used at each end of the bridge; the effort being to dislodge the drift with this power. This, of course, increased the pressure against the bridge. Upon the third day the drift suddenly broke in two, one portion of it broke loose and floated down the river, and the false works of the bridge above this portion tumbled down. The workmen, including Shivell, were upon this portion when the drift parted; but they escaped to the other portion, save one man, who was struck by a falling timber, but rescued after floating some distance down the river upon the drift. The deceased, as soon as he got upon the portion which was stationary, ran to the side of it nearest to the shore, and jumped into the river, as if to swim ashore, but was drowned. It is possible that he fell or was knocked into the river, but, from the testimony, this is not probable. When this occurred the remaining part of the drift, and the false works of the bridge above it, were cracking, and apparently about to break loose and fall, in which event the workmen upon the drift would have been in danger of drowning or of death from the falling irons and timbers. Saving the deceased, they remained there, however; and, as this did not happen, no other life was lost. The appellee, who is the widow of the deceased, brought this action as his administratrix to recover damages for the loss of her husband's life, averring that it was caused by the gross and willful neglect of the appellant.

The accident happened in Alabama, but as the appellant has an existence in the county in this state in which this suit was brought, and as it is shown there is a statute in Alabama of similar import to our own, giving a right of action where death results from the negligence of a corporation, the appellee had a right to sue here. Bruce's Adm'r v. Railroad Co., 83 Ky. 174. Whether this would be so in the absence of a...