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

• Decision Date: 24 February 1915
• Citation: 163 Ky. 125,173 S.W. 343
• Parties: LOUISVILLE & N. R. CO. v. HOLLOWAY'S ADM'R.
• Court: Kentucky Court of Appeals

173 S.W. 343

163 Ky. 125

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

Court of Appeals of Kentucky.

February 24, 1915

Appeal from Circuit Court, Henderson County.

Action by John G. Holloway's administrator against the Louisville & Nashville Railroad Company.Judgment for the plaintiff, and defendant appeals.Reversed and remanded.

N Powell Taylor and Jno.C. Worsham, both of Henderson, and Chas. H. Moorman and Benjamin D. Warfield, both of Louisville, for appellant.

Clay &amp Clay, of Henderson, for appellee.

TURNER J.

In May 1912, John G. Holloway, a locomotive engineer employed by appellant, while operating a north-bound freight train between Pensacola, Fla., and Montgomery, Ala., was killed in a collision between his train and a work train.His administrator qualified in Henderson county, Ky. and instituted this action in that county under the federal Employers' Liability Act for damages.The jury returned a verdict in the sum of $32,900, and, a judgment having been entered thereon, this appeal is prosecuted by the company.Only general allegations of negligence were made, and it was further alleged that decedent left a widow as his only dependent, and that the action was prosecuted by the administrator for her benefit.In an amended petition it was alleged, either that plaintiff's intestate was killed by the collision of the two trains, or was buried under or crushed and killed by the wreck, or was burned to death in the fire which resulted therefrom.The defendant's answer denied negligence or that the plaintiff's intestate came to his death in any manner by reason of its negligence, and pleaded contributory negligence.But it was conceded by the defendant, on the record, that deceased was killed in the collision and was at the time engaged in interstate commerce.The work train was going south and had stopped at a point between two stations; the freight train was coming north and was running down grade.Under the rules of the company, it was the duty of the flagman of the work train to go back with stop signals, to signal and stop the north-bound freight train; also, to place a torpedo on the rail 1,500 feet from his train, and then continue to go back until he was 3,000 feet from it, and there place two torpedoes on the rail 30 feet apart, and then remain not less than 2,100 feet from it until he had flagged the approaching train.The fireman of the north-bound freight train testified that he did not see the flagman, that no torpedoes were exploded, and that so far as he knew no signals had been given.Another employé, who was at the time riding on the pilot or cowcatcher, testified that he did not see the flagman, and that no torpedoes were exploded.They each said that they did not know of the presence of the work train on the track until they rounded a curve a few hundred feet from it, whereupon the employé who was riding on the tender gave the signal and they both jumped just before the collision.There were other circumstances testified to by witnesses tending to show that no signal had been given.On the other hand, the flagman of the work train stated that he proceeded to the point where he was directed to go and even beyond that; that he placed the torpedoes on the track, and when the train approached he gave the signal with his flag, but did not receive the customary response by whistle; that when he failed to receive the response and the train showed no sign of slacking its speed he hallooed to the engineer as the train passed and again tried to give a signal to somebody on the caboose, but saw no one there.He states that he saw no one on the engine or in the cab of the engine, except that at the engineer's window he saw somebody's arm in the window and the top of a man's hat who seemed to be looking down.The crux of the whole case is whether or not the flagman gave the signals in time for the train to have been stopped before reaching the work train; and, if he did, whether the engineer was at the time keeping such a lookout as would have enabled him to see and hear them.The evidence, as stated, without going into details, shows that there was a sharp conflict on these issues, and it was therefore proper that the case should have been submitted to the jury.

The complaint that it was error to permit evidence as to the burning of decedent's body in the fire which resulted from the collision seems to be justified.It has already been admitted of record that he had lost his life as a result of the collision, which left negligence and contributory negligence the only questions to be inquired into.Under this state of the record, going into such details could only tend to inflame the minds of the jury and unreasonably appeal to their sympathies, and that it did have such effect is apparent from the amount of the verdict.

The petition alleges that the decedent left a widow, but no children, surviving him, and that the action is prosecuted for her benefit alone; but it is neither alleged nor proved that she had during his lifetime received any pecuniary benefits from him, or that she had any expectation of so doing in the future if he had not lost his life.

The federal act provides that:

Railroads engaged in interstate commerce "shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and, if none, then of such employé's parents; and, if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier."

It is urgently insisted for appellant that, as the federal act only provides for the recovery of pecuniary benefits of which the beneficiary has been deprived by reason of the negligence of the carrier, there can be no presumption that even the decedent's wife had been deprived of such benefits, in the absence of allegation and proof; in other words, that in a case where the wife is the sole beneficiary there must be both allegation and proof of her actual dependency and that she had been deprived of pecuniary benefits.Many authorities have been cited, both of the Supreme Court and of this court, in some of which the language would seem to be broad enough to bear the interpretation claimed by appellant; but in none of these cases was the wife the sole beneficiary, and therefore the precise question involved was not presented in any of them.As this case must be retried for reasons hereinafter given, we have not deemed it necessary to now pass upon this question; but upon the return of the casethe appellee may amend his pleadings.

It is further argued for appellant that, as the action was brought under the...