Louisville & N.R. Co. v. Chambers

• Decision Date: 23 September 1915
• Citation: 165 Ky. 703,178 S.W. 1041
• Parties: LOUISVILLE & N. R. CO. v. CHAMBERS.
• Court: Kentucky Court of Appeals

178 S.W. 1041

165 Ky. 703

LOUISVILLE & N. R. CO. v. CHAMBERS.

Court of Appeals of Kentucky.

September 23, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Mrs. Mahala Chambers against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

See also, 178 S.W. 1101.

Helm &amp Helm and Benjamin D. Warfield, all of Louisville, for appellant.

S. L. Trusty, of Louisville, for appellee.

HANNAH J.

Davies street, in Louisville, extends east and west. It terminates at its eastern end in a "commons" adjoining the lumber yards of the C. C. Mengel Bros. Company. On the south side of this street, and at the corner where the street ends, there is a six-room double frame dwelling, with brick foundation and cellars under it. The eastern half of this double dwelling (the half nearer the commons), consisting of three rooms, was on November 5, 1912, occupied by W. E. Chambers and his wife, Mahala, and their son and daughter-in-law, Mr. and Mrs. R. C. Chambers.

From the Louisville & Nashville Railroad Company's tracks, on Seventh street, there extends westward an industrial switch into the Mengel lumber yard, which switch terminates at a point in the commons about 20 feet east of the Chambers residence, and which runs approximately on a line with the southern line of Davies street. The dwelling stands back 19 feet from the fence on the southern line of the street, and 4 1/2 feet from a fence on the east side of the property.

On the night of November 4, 1912, Mr. and Mrs. R. C. Chambers slept in the front room of the eastern half of this double dwelling, and appellee and her husband occupied the adjoining or "middle" room. The bed occupied by the latter couple stood in the southwest corner of the room. About 4 o'clock on the morning of the 5th a train of cars was backed onto the Mengel switch, and owing to a misunderstanding of signals among the train crew one car and the trucks of another rolled off of the end of the switch, crashed into the fence in front of the Chambers residence, and stopped with the front trucks in a cistern located on the front fence line and at a point just in front of the middle of the house.

Alleging that "said train and cars were caused to crash into and through the front fence and yard of said premises, violently plowing through the ground and crashing and demolishing things in its path, and thereby jarring, shaking, and moving said house, and causing plaintiff to come in contact with hard substances, permanently injuring her," Mrs. Mahala Chambers instituted this action against the railroad company to recover damages for her injuries. From a verdict and judgment in her favor in the sum of $2,000, the defendant appeals.

The bed upon which the plaintiff and her husband were sleeping was an iron one, the foot of which was 2 feet higher than the mattress. She testified upon the trial that she was thrown over the foot of the bed onto a rocking chair and thereby injured. The car itself did not touch the house. It struck the corner of the fence, 19 feet in front of the house, although about 6 feet of the width of the car was inside the line of the front fence. It tore down the front fence, which was built of pickets, and also demolished the first three panels of the side fence, and twisted some boards off of the fourth panel, the rear post of which was 32 feet from the front corner.

This side fence was constructed of posts placed 8 feet apart, upon which were nailed horizontally pine boards 16 feet long and 1 foot wide, the boards being arranged with "broken joints"; that is, the first and the third and the second and fourth boards were so spaced as to end alternately on the posts to which they were attached. The fence was four boards (or 4 feet) high. Aside from the breaking of a pane of glass in the front door (evidently caused by a flying picket from the front fence), nothing inside the house was disturbed, except that the strings suspending a couple of pictures broke and a stovepipe became disconnected. Nor were there any marks of contact on the exterior of the dwelling.

Mr. and Mrs. R. C. Chambers, who were sleeping on a bed in the front room, were not thrown therefrom. A Mrs. Leonard, with her 20 year old son and 18 year old daughter, occupied the western half of this double dwelling, and none of them were thrown from their beds or seriously disturbed. In fact, the son testified that he was not awakened. And, we are firmly convinced that Mrs. Mahala Chambers could not have been, as she testified, thrown from her position on the bed, over the foot thereof, 2 feet higher than the mattress, and onto a rocking chair near the foot thereof. Such an occurrence is inherently impossible; there was no force there present and operating upon her which could have produced such a result and her testimony in that respect is impeached by all the physical facts, concerning which...