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

• Decision Date: 28 October 1915
• Citation: 179 S.W. 419,166 Ky. 477
• Parties: LOUISVILLE & N. R. CO. v. FENTRESS' ADM'R.
• Court: Kentucky Court of Appeals

179 S.W. 419

166 Ky. 477

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

Court of Appeals of Kentucky.

October 28, 1915

Appeal from Circuit Court, Muhlenberg County.

Action by the administrator of Bruce M. Fentress against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Benjamin D. Warfield, of Louisville, Taylor & Eaves, of Greenville and Wilbur F. Browder, of Russellville, for appellant.

Virgil Y. Moore, of Marion, Gordon & Gordon & Cox, of Madisonville and Thos. J. Sparks, of Greenville, for appellee.

TURNER J.

On Sunday, November 9, 1913, Bruce M. Fentress and Duncan Morgan aged, respectively, 18 and 17, went to Cleaton, a mining town in Muhlenberg county on appellant's railway line, to call upon two young ladies, Misses Jackson. Finding that the young ladies were out of town, but would return on the afternoon train, they remained there and met them at that train. The young men themselves expected to leave the town on another train which left shortly after the train bringing the young ladies came. After having first made arrangements with a friend to purchase their tickets for them so that they could remain as long as possible with the young ladies and still catch their train, they proceeded with them down the railroad track about 250 or 300 yards in the direction of their home. At this place was a bridge or crossing where they had a view of the railroad track all the way back to the station and about 250 or 300 yards in the other direction from which the train they expected to board was coming. They stayed at the bridge or crossing and talked to the young ladies for about five minutes, when their train appeared around the curve about 250 or 300 yards away. They hastily told the young ladies good-bye, and started running down the track towards the station, the train coming behind them going in the same direction. It was about 5:40 p. m., and dark. Morgan was about 10 feet in front of Fentress. At a point about halfway between the bridge and the station there were four tracks two of which ran under a coal tipple, another known as the main track, and a passing track. The main track was the most eastern, and the passing track was next to it, and between them was a space of a few feet. The headlight of the engine was shining brightly, and when they were near the coal tipple Fentress, thinking that Morgan was on the passing track, and that the train behind them was coming on that track, hollered to him that he was on the wrong track. Morgan at the time was not in fact on the passing track, but was in the space between the two tracks, but, when notified by Fentress that he was on the wrong track, he immediately observed that Fentress himself was on the track upon which the train was coming and which was then within 10 feet of him, and so notified him. Fentress then for the first time observed that he was on the track upon which the train was coming, and made a quick and well-nigh successful effort to jump off the track, but the engine struck his leg, threw him against a switch signal, and killed him.

This is an action by the personal representative of Fentress against the railroad company for damages. On the trial in the lower court the plaintiff recovered a judgment and verdict for $2,500, and the railroad company appeals. The only ground of reversal is that the company was entitled to a peremptory instruction, and that is the only question necessary to be determined.

Morgan, Fentress' companion at the time, was the only eyewitness to the accident, and tells of it in the following way:

"We ran right down there between those tracks and right a little of this side of the tipple here, about there, he got between those tracks; he got on the main track; that is where I judge he got on. Before I noticed it he was down here, along here somewhere, and he hollered to me to look out; that I was on the wrong track. I hollered-- When I looked around, I guess the train was 10 feet away from him. I had time to holler, but he didn't have time to get off; he was almost off along there. The train hit him on his left leg. I found him laying right there. Q. He was along down here about this green cross somewhere alongside the tipple? A. Yes. Q. And said to you that you were on the wrong track? A. Yes, sir. Q. Immediately you turned and looked, and saw he was on the wrong track, and you told him so? A. Yes, sir. Q. And before he could get out of the way the train struck his left leg here at this point? A. Yes, sir. Q. And did you go to him immediately after the train passed? A. Yes, sir. Q. Where did you find him? A. Right there. Q. Did he hear your warning that he was on the wrong track? A. I believe he did. Q. How far were you from him at the time? A. I was about-- I hollered about 20 feet-- Q. Did he attempt to heed the warning you gave him? A. Yes, sir. Q. He didn't have time to get out of the way? A. No, sir. Q. What did you see him do when you cried to him that he was on the wrong track where the train was approaching? A. He looked around and saw he was wrong and tried to get off. Q. Was he in the act of jumping off when it struck him? A. Yes, sir. Q. As you saw him, did the train strike him at any place except on the left leg? A. No, sir."

Again on his main examination he testifies as to the point where Fentress got on the main track as follows:

"Q. You think young Fentress passed on to the main track about the green cross? A. That is where I said he got on--right there. Q. What distance, Mr. Morgan, is it from the point where he got on the track to the point where he was struck? A. 140 feet."

Again on cross-examination he says:

"Q. When you saw the train coming and heard it coming, what did you and Fentress do? A. Went down the track. Q. Who was ahead? A. I was. Q. What part of the track did you run down? A. Between the main track and the west side, on the west. Q. How far was the train away from you when you started to run down to Cleaton to get on the train? A. It was coming around the curve up there from Bevier. Q. About how far was that from where you were standing? Did you see that measured? A. No, sir. Q. It would be a mere guess to say how far it was? A. Yes, sir. Q. You don't know how far it was? A. No, sir. Q. Can you say approximately how far it was in your opinion? Was it as much as 200 yards? A. Yes, sir; it is that much. Q. 300 yards? A. I think between 200 and 300 yards. Q. Between 200 and 300 yards? And you were 200 yards from the station on that bridge? A. Yes, sir; what I guess. Q. That is your opinion? A. Yes, sir. Q. You saw the train between 200 and 300 yards coming towards you while you were standing on the bridge and then it was about 200 or 300 yards from the station where you were to get on the train? A. Yes, sir. Q. Well, you wanted to beat the train to the station, didn't you? A. Yes, sir. Q. When you left the little bridge where you left

...