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

• Citation: 142 Ky. 778,135 S.W. 288
• Parties: LOUISVILLE & N. R. CO. v. HUNT'S ADM'R.
• Decision Date: 15 March 1911
• Court: Court of Appeals of Kentucky

135 S.W. 288

142 Ky. 778

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

Court of Appeals of Kentucky.

March 15, 1911

Appeal from Circuit Court, Rockcastle County.

Action by Walter Hunt's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

J. W Brown, J. W. Alcorn, and Benjamin D. Warfield, for appellant.

C. C Williams, Robt. Harding, and Greene & Van Winkle, for appellee.

HOBSON C.J.

Walter Hunt was a brakeman on a freight train of the Louisville & Nashville Railroad Company, and was killed at Gum Sulphur on February 13, 1908. This action was brought by his personal representative to recover for his death, and in the circuit court the plaintiff recovered $7,000. The railroad company appeals.

The first question made on the appeal is that on the plaintiff's evidence the court should have instructed the jury peremptorily to find for the defendant. The facts shown by the plaintiff are these: When Hunt's train reached Gum Sulphur, it took a siding there to allow a passenger train to pass it. The siding was not long enough to hold the freight train, and some of the cars were on the main track after the engine had pulled in on the siding. So Hunt was sent forward with a flag to flag the coming passenger train. Four witnesses were introduced by the plaintiff as to how he was killed. H. M. King, who was sitting on his porch about 250 yards from where Hunt was killed, thus tells what occurred: "He got down right in front of my door with his flag in his hand and went down 10 or 12 telegraph spaces--a red flag, a danger signal--and sat down on the rail with his flag in his left hand, facing the east. That would throw the flag north, the way the train was coming. Part of the flag was out. It wasn't all out. I then went in the house. He was sitting on the track. I cannot say whether he was asleep or awake when I last saw him." Porter Botkins, who was in the depot, made this statement: "I saw him going down the railroad with his flag, and then I never noticed him any more until just before the train hit him. The train was coming up after it blowed for the crossing down there, and I went to the door and was looking down that way and saw him then. He was sitting down on the rail, and when the train came up a cut it seemed right against him. He jumped up and started up like over to the opposite side of the track from him, and then started back, and it struck him. The flag was kinder rolled up when he had it in his hand. I never saw it open." On cross-examination the witness stated it was 5 or 10 minutes after Hunt went down the track before the passenger train came. The witness heard the train blow and came out of the depot and saw the man sitting there a minute or two before the train reached him. Jack King, who was at the depot, makes practically the same statement as to the flag, but says that Hunt did not change his position or move from his seat on the rail before the train struck him. Ed Prewitt, who was also at the depot, and makes practically the same statement as to the flag, says this: "He heard the train, and it was so close on him that he started to cross, and started to make another step next to the rail, and about that time the train hit him." On cross-examination he says this: "He started to the north and got about two steps and turned, and just the least little bit, and then turned and went back south with his flag in his hand in front of the train, and while he was going that way the train struck him." The proof for the plaintiff also showed that Hunt had not gone down the track as far as he was required to go by the rules of the company to flag the passenger train, and that he had not placed out torpedoes as he was required to do on the rails. He had been sent out to flag the passenger train to prevent a collision between that train and his train, and the sum of the evidence for him is that without going as far as he was required by the rules to go, and holding his flag in his hand about half unfurled, he sat down on the track and went to sleep; that while he was so sitting there the passenger train came up and he was killed.

In Coleman v. Pittsburg, etc., R. R. Co., 63 S.W. 39, a flagman stationed at a crossing to watch the crossing was himself killed by a train when the evidence did not show the trainmen were aware of his danger. Holding that the circuit court should have given the jury a peremptory instruction to find for the defendant, the court said: "A servant of a steam railroad company, who is charged with an important and particular duty to his master and to the public, will not be allowed to profit by any neglect of that duty. Not only the fairest...