Louisville & N.R. Co. v. Murphy

• Decision Date: 24 October 1912
• Citation: 150 S.W. 79,150 Ky. 176
• Parties: LOUISVILLE & N. R. CO. v. MURPHY. [49]
• Court: Kentucky Court of Appeals

150 S.W. 79

150 Ky. 176

LOUISVILLE & N. R. CO. v. MURPHY. ^[49]

Court of Appeals of Kentucky.

October 24, 1912

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by John J. Murphy against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions for new trial.

Nunn J., dissenting in part.

S.D Rouse, of Covington, and Benjamin D. Warfield, of Louisville for appellant.

Wm. A. Byrne, of Covington, for appellee.

CARROLL J.

This is the second appeal of this case. The opinion on former appeal may be found in 143 Ky. 31, 135 S.W. 422, and, as the facts are quite fully set out in that opinion, it is not necessary that we should repeat them here except to the extent that may be necessary to illustrate the grounds relied on for reversal. In the former opinion we said that as the right to recover was rested on the ground that the railroad company was negligent in failing to have a watchman at the place of the accident to look out for the slide, and to warn Murphy in time to have enabled him to stop his train, he could not recover, as there was no evidence that the slide occurred a sufficient length of time before the accident to have enabled a watchman to give any notice. It was also said that Murphy, in disobedience of a train order, was running at a high rate of speed, and this fact so contributed to the accident as to defeat a recovery. It was therefore held in the opinion that the trial court should have directed a verdict for the railroad company. On this appeal the railroad company insists that the evidence on the last trial is substantially the same as it was on the first trial, and so its motion for a peremptory instruction should have been sustained. It is also argued that the court erred in rejecting evidence offered by the railroad company, in admitting evidence introduced by appellant, and that the verdict is excessive.

Taking up first the question whether or not the peremptory instruction should have been given, the correctness of the ruling of the trial judge on this point depends on whether or not the evidence was substantially the same as on the first trial. If it was, the peremptory instruction should have been given; otherwise not. In the former opinion it was said: "Instead, then, of the proven facts tending to show that the landslide took place some time prior to the accident, they all lead to the irresistible conclusion that it occurred when appellee's engine was only a few car lengths away. That being true, no flagman or watchman could have given appellee any kind of warning in time to prevent the accident. Appellee himself received notice of the landslide as soon as any watchman could have done, and he put on the emergency brakes more quickly than he could have done had he received warning through a watchman or flagman. Indeed, he knew of the landslide as soon as it took place. It was then too late to stop the train. It follows, then, that he was injured, not because of appellant's negligence in failing to have a watchman or flagman at the place of the landslide, but because of an unfortunate accident which appellant could not have prevented."

But on this appeal counsel for Murphy insists that the evidence on the second trial showed conclusively that the landslide occurred a sufficient length of time before the train reached that point to have enabled a watchman, had one been there, to have given notice to appellee in time to have stopped his train before running into it. Putting aside for a moment the question as to the competency of the evidence of Justice, that will be later noticed, there is quite a difference in the testimony given on this point by appellee on the first and second trial, largely due to the fact that he was examined more thoroughly on the second than on the first trial, and we think his evidence alone was sufficient to take the case to the jury upon the issue that a watchman could have averted the accident. We do not, of course, mean to say that the evidence of Murphy conclusively established this fact in his favor. What we do mean to say is that his evidence alone on the second trial was sufficient to take the case to the jury on this question, and it was then for the jury to say from all the evidence on this issue whether or not the accident could have been averted by the presence of a watchman. On the second trial J. A. Justice, who was also a witness on the first trial, testified to certain facts that conduced very strongly to show that the landslide occurred several minutes before Murphy's train ran into it, and with this evidence before them the jury could not well have escaped the conclusion that the accident could have been avoided if a watchman had been stationed at the place the landslide occurred.

The evidence we have referred to was not given by Justice on the first trial, and it is now earnestly argued that substantial error was committed by the trial court in overruling objections to its admission. That the evidence of Justice was of great assistance to appellee cannot be denied, and, if it was incompetent, the error of the court in admitting it fully warrants us in granting a new trial; for although, as we have stated, the evidence of Murphy was sufficient to take the case to the jury upon the point we are now considering, it was materially strengthened by the evidence of Justice, and, while the jury might have found against Murphy on his unsupported evidence, they could not have well done so when it was corroborated by the evidence of Justice. It will thus be seen that the question as to the competency of this evidence is of controlling importance, and so we will notice it carefully.

Justice was a section foreman for the railroad company in charge of that part of the track where the landslide occurred, and with his crew of men was engaged at the time the accident occurred in work at a station called Livingood, three-quarters of a mile north of the place of the accident. He was asked these questions: "Q. When did you first get notice, or did you get notice, of the slide coming down? A. Yes, sir. Q. When did you first hear it? A. Just after No. 90 left there was a fellow by the name of Crowley. He told me. That man coming down, he told me. Q. You say a man by the name of Crowley come to Livingood? A. Yes, sir. Q. Who was he? A. A fellow in the neighborhood there. Q. Where is he now? A. He is dead. Q. At that time had Murphy's train got to the scene of the accident? A. No, sir. Q. How do you know that? A. He did not come down until after Crowley. Q. You did not hear Murphy until after this man Crowley had seen you? A. I heard him before; yes, sir. Q. Where was Murphy's train then? A. I could not tell that, but I heard it coming. Q. Had he reached the place of the accident, could you tell that? A. No, sir he had not. Q. Where were you when you heard of the landslide? A. Livingood. Q. When you started to the place of the wreck or slide where were you? A. When I started, I was at Livingood. Q. How far is Livingood from the place where the slide occurred? A. Three-quarters of a mile. Q. When you got to the place of the slide, what did you see there? A. When I got there, the engine was turned over the embankment, and laying down next to the river. Q. When you started with your men to the slide, did you know anything about the whereabouts of the plaintiff's train? A. I don't know exactly where it was. We heard it coming, but it seemed like it was half way between there and Morgan. Q. South of the slide? A. Half way between the slide and Morgan. I heard him whistle. I could see him. Q. You knew before you left work to go to the slide what had happened? A. Yes, sir. Q. How, then, did you go to the slide? A. This fellow came running up to us. Q. What happened? Tell about him coming there. A. He came running up--Crowley. Q. You say Crowley came running up there? A. Yes, sir. Q. You say this man Crowley came up there, and you then gathered your men together, and got on a hand car and went off? A. Yes, sir. Q. Tell what happened when he come there. A. I hollered for my men when he came there and told me about it. Q. How was this man Crowley coming? A. He was running...