Louisville & N.R. Co. v. Lefevers' Adm'x

• Citation: 155 S.W.2d 845,288 Ky. 195
• Parties: LOUISVILLE & N. R. CO. v. LEFEVERS' ADM'X.
• Decision Date: 05 November 1941
• Court: Court of Appeals of Kentucky

155 S.W.2d 845

288 Ky. 195

LOUISVILLE & N. R. CO. v. LEFEVERS' ADM'X.

Court of Appeals of Kentucky

November 5, 1941

Appeal from Circuit Court, Harlan County; James S. Forester, Judge.

Action for death by Mrs. W. H. Collette, administratrix of the estate of Pearl Lefevers, deceased, against the Louisville and Nashville Railroad Company. From a judgment for the plaintiff, defendant appeals.

Reversed.

J. C Baker, of Harlan, H. L. Bryant, of Pineville, J. Miller White and H. T. Lively, both of Louisville, for appellant.

C. B Spicer and George R. Pope, both of Harlan, for appellee.

STANLEY Commissioner.

In Louisville & N. Railroad Company v. Lefevers' Administratrix, 272 Ky. 152, 113 S.W.2d 1136, we reversed a judgment for $5,000 for the death of Pearl Lefevers, alleged to have been caused by the negligence of the railroad company in striking him at a public crossing in or near Molus, in Harlan County. We were of opinion that the court should have directed a verdict for the defendant because the physical facts, the place where the cinder ballast was first disturbed, blood on the rails and wheels and the location of the body, destroyed the effect of testimony which only afforded speculation that the man was struck on the crossing or at a point where the company did not owe him any duty other than that of a trespasser. Negligence in that respect was not proven.

After the reversal of the judgment the company took the deposition of the administratrix as on cross-examination, and she deposed she knew of no witness who had not testified on the first trial, and no additional evidence. However, she indicated little personal knowledge about the preparation of the case, saying that the witnesses talked "to my brother and my husband and my attorney." Her husband is W. H. Collette and her brother John Hoskins. The case was continued from time to time.

On November 28, 1939, nearly two years after the mandate reversing the first judgment was issued, the company took the deposition of Earl Gibson, at Manchester, Clay County. He deposed that he was in Arkansas when Lefevers was killed in September, 1935. He returned not long afterward and on December 23, 1935, he went with Collette and Hoskins to the place where the accident occurred and Collette revealed to him a plot in which he, Gibson, Sanford "Cowboy" England, "Big Charlie" Saylor and George Sweeten should testify that they were playing cards by flash light at a certain nearby point and had seen Lefevers on the crossing when he was struck by the cars. The witness described the proposed scheme in detail. Each of these men was to receive $15 certain and $30 if the case were won. It seems that the witness revealed the scheme because he was not paid for attending court when the case had been called but not tried. He stated that Collette had given him money now and then but had stopped because, he said, England had told about the scheme and the railroad company knew of the frame-up. While the confession of the willingness to participate in the nefarious plot stamps Gibson as disreputable, his recitation of the story leaves the impression that he was telling the truth. This is fortified by subsequent events. Not long after this deposition was filed, Judge J. B. Snyder, who had been representing the plaintiff, withdrew from the case on notice and C. B. Spicer took his place. On this trial Collette denied Gibson's story and testified that Gibson, who was boarding at his house, had told him he knew about the accident and he had had him and Charlie Saylor summoned as witnesses. Having investigated their story and found it false, Collette would have nothing to do with them. Hoskins testified as to other things, but was silent about this.

The evidence presented by the plaintiff on this trial, which occurred in February, 1940, was about the same as on the first trial. But there were three new witnesses. Another verdict for $5,000 for the plaintiff was returned and judgment entered thereon. The railroad company insists that it was entitled to a peremptory instruction upon this trial, contending that the additional testimony is without probative value. Further grounds submitted are that the deceased was guilty of contributory negligence as a matter of law; an erroneous instruction was given, and incompetent evidence admitted.

Lefevers left the saloon and pool room of his uncle, John Hoskins, in what is called the "Lower Camp" at Molus about 10 o'clock that night. He lived with his mother and stepfather in the "Upper Camp" below there on the other side of the "tail track" of the railroad company. As on the former trial, the evidence was that Lefevers traveled down a walk way, crossed Pide Branch on to the Saylor creek road a short distance before it crosses the track. Joe Sweeten testified, as he did before, to having passed and spoken to Lefevers on the road a short distance from the crossing. He had stopped for a few moments at the home of his brother, Elmer Lefevers, who lived between the road and one of the switch tracks below the crossing. As before, none of those witnesses undertook to place the man on the track at the crossing, their testimony only showing that he was nearby and going in that direction. As described in the former opinion, the physical facts indicated that he was struck by a cut of cars more than 100 feet above the crossing and that his body had been run over by 18 cars. It was found the next morning under the fourth from the last of a cut of 22 cars.

One of the new witnesses was Bill Napier. He had seen Lefevers at his uncle's saloon during that evening. He left an hour or an hour and a half afterward going in the same direction. On the railroad crossing he found a pipe and a can of tobacco about one-third full. It was a dark night but he had a flash light. The afternoon of the next day Napier gave the articles he had found to Collette, the deceased's stepfather, and told him where he had found them. His brother, Elmer Lefevers, was present and the two men examined and identified the pipe as belonging to the deceased. This witness lived within three or four hundred yards of Collette during all the time but says he did not know about the first trial until it was over. He did not know why he had not been called as a witness. The deceased's aunt, Mrs. John Hoskins, testified that she had sold Lefevers a can of tobacco that night like that which was found, and he had sat on the bed and filled his pipe just before he started out. She identified the pipe and the can of tobacco as belonging to him. Four and a half years had passed and this important evidence had been kept by a friend and close neighbor and the brother and stepfather of the deceased as a strict secret. It had been called for trial in the meantime but Napier was not there or subpoenaed to be there. There is no explanation for this other than that it must have been an afterthought, induced by the necessities of the case.

Another newly discovered witness was Sid Brock. He got with Charlie Meeks that night at the bath house and they went down the road together. As we understand, they went from the Upper Camp and crossed the railroad track in a direction opposite to that in which Lefevers traveled. Brock testified that at a point about 75 yards from the crossing and about the same distance from Elmer Lefevers' house, he stepped into the bushes off the side of the road and sat down. He heard Pearl Lefevers talking to his brother, Elmer, and saw him leave. Then he heard him and Joe Sweeten speaking to each other at the crossing. He "made a quick spring to get off the railroad." The night was not very dark and one could see to travel without a...