Louisville & N.R. Co. v. Murphy
| Decision Date | 18 March 1911 |
| Citation | 135 S.W. 422,143 Ky. 31 |
| Parties | LOUISVILLE & N. R. CO. v. MURPHY. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.
Action by John J. Murphy against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed for new trial.
S.D Rouse and Benjamin D. Warfield, for appellant.
Wm. A Byrne, for appellee.
Appellee John J. Murphy, brought this action against appellant Louisville & Nashville Railroad Company, to recover damages for personal injuries alleged to have been due to its negligence. The jury returned a verdict in his favor for $15,000, and the railroad company appeals.
Appellant's principal ground for reversal is the failure of the trial court peremptorily to instruct the jury to find for it. In view of the conclusion of the court, this question alone will be considered.
At the time of the accident appellee was 44 years of age, in good health, and had been running an engine for about 18 years. When he was injured, he was in charge of engine 1201, hauling freight train No. 42, consisting of 30 cars and a caboose. The train was enroute from Corbin to Covington. Upon reaching a point about 60 feet north of milepost 47 and 7 miles south of Falmouth, Ky. the engine ran into a landslide which covered the track for a distance of 15 or 20 feet and to a depth of about 2 feet. Upon striking the slide and running through the earth for a few feet, the engine left the track, turned to the left, and ran down the embankment to Licking river, a distance of about 75 feet, and turned upside down. Appellee was severely injured, and in the opinion of a physician of high standing is now a helpless cripple.
The accident happened at a place called Uma. In this vicinity there is a steep cliff on the east side of appellant's right of way as you proceed north. The earth upon the side of the cliff is cracked, the cracks running parallel with each other for a distance of several hundred feet on each side of the place where the accident occurred. Though the day of the accident was bright and clear, it had been raining off and on for some time before. Several landslides had occurred in the vicinity, and the character of the earth was such that a landslide could be expected in wet weather. Up to within a few days of the accident appellant had had a watchman there both day and night. When the accident occurred, appellant's section foreman and three men had charge of six miles of track, embracing the track at the place of the accident; and, in addition to this force, John Crowe, an extra gang foreman, with a crew of 16 men, was constantly at work in the vicinity of Uma, taking out slides and straightening the track if it got out of shape. Early in the morning this extra gang of men, whose duty it was to watch for slides, were at work about 250 yards south of where the slide took place. When the wreck occurred, Justice and his men were at work at Levingood, nearly a mile distant. Crowe and his men had gone to milepost 51 to remove a slide. None of his men were left at the place of accident. It appears that one of Justice's men passed by about 10 o'clock in the morning, and this is the last time that any of appellant's track employés were in the immediate vicinity.
Appellee testified that, as near as he could remember, he passed Boyd Station, which is six miles from Uma, at a speed of between 22 and 25 miles an hour. After leaving Boyd Station the fire got away from the fireman, and the steam got low. In going up the overhead bridge he made the engine labor hard. When he got over the hill and through Blue Rock cut, he used steam on the straight line. He then gave the train a good start and shut off the throttle driving down Boyd Hill. Going into Morgan he reduced the speed. After reducing the speed and getting around the curve, he opened up the throttle again and went after the engine pretty strong. He then drove down the Morgan straight line, and in going into Uma sounded a long whistle. On passing Uma he looked at his watch, and it was 2:18 p. m. He then closed his watch and was standing with his hands on the throttle, looking out the window of the engine. On reaching a point a little beyond the other side of Johnson bridge he could see something ahead down the hill, something he had never seen there before. By that time he was around the curve, and the track was thrown out of line. He threw on the emergency brake and halloaed to his fireman to look out for that slide. The fireman was down in the hole in the deck. He told the fireman to stay on. The engine then struck the track, which was out of line, and appellee remembered nothing more that took place. In approaching the place of the accident he did not see any flag or run over any torpedoes. Witness then described the character and extent of his injuries. Appellant had kept a watchman at this place to watch for slides. Had there been a watchman there, the watchman could have flagged him, as there was a little over two miles of straight track. There was a sharp curve a little to the south of the place of the accident. He was on the curve when he saw the track was out of line, and saw the dirt and stuff down on it and more coming. He was four or five car lengths away when he first saw the slide. On cross-examination, appellee stated that he was familiar with appellant's line of railway on which the derailment occurred, and with its natural condition. There had been rain during the month of February. While he did not know that the point of accident was a bad place, he did know that the ground there had slipped away. Appellee admitted receiving and signing for the following bulletin orders:
The average schedule time of appellee's train was 15 to 18 miles per hour. According to his best judgment he was running about 25 miles per hour after leaving Morgan Station. At the time he had in mind the fact that the master of trains had issued a special bulletin because of the weather conditions and was looking out for places where slides were liable to occur. When he first saw the slide he was four or five car lengths from it, or a distance of about 136 feet. When he got around the curve, he saw the track was out of line and saw the dirt sliding, too; that is, he saw that part that had not already come down still sliding. The company had had a...
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Louisville & N.R. Co. v. Murphy
...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 are quite fully set out in that opinion, it is not necessary that we should repeat them here except to the extent that ma......