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

• Decision Date: 18 January 1929
• Parties: LOUISVILLE & N. R. CO. v. MANN'S ADM'R.
• Court: Kentucky Court of Appeals

13 S.W.2d 257

227 Ky. 399

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

Court of Appeals of Kentucky

January 18, 1929

Appeal from Circuit Court, Perry County.

Action by James Mann's administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Woodward Warfield & Hobson and Ashby M. Warren, all of Louisville Jesse Morgan, of Hazard, and C. S. Landrum, of Lexington, for appellant.

H. C Johnson and W. A. Stanfill, both of Hazard, for appellee.

DRURY C.

The Louisville & Nashville Railroad Company, which we shall call the defendant, seeks to reverse a judgment for $8,000 recovered against it for the death of James Mann, a 13 year old boy. Several grounds for reversal are relied on; but, in view of the conclusion to which we have come, we shall not consider these, as the defendant was entitled to a directed verdict.

Assuming, but not deciding, that the evidence for the administrator was all properly admitted, this is what it shows: On the morning of May 21, 1926, the decedent was given money by his mother to make a visit to his uncle, Boyd Baker, who lived at Krypton, Ky. He got on one of the defendant's south-bound trains, and said he went to sleep, and was carried past Krypton to Hazard. He then started to walk back, and on the way he became tired. He sat down on the track with his elbows on his knees, his head bent over, his face in his hands, and went to sleep, While asleep, he was struck and killed by one of defendant's north-bound freight trains. The place where he was killed was known as Hoyt's curve. The railroad at that point is constructed along the west side of the Kentucky river. There are three tracks at that point. The east or right-hand track is used for north-bound trains, the west or left-hand track is used for south-bound trains, and between these two there is a third track called a "passing track," but which was used at that time as a storage track and was filled with empty cars. There is some dispute in the evidence about the view afforded the agents of the defendant in charge of this train of the point where the boy was killed; but, accepting the administrator's contention as to that, then the boy could have been seen a distance of 924 feet before he was struck. The alarm was sounded and the brakes applied when this train was 132 feet from where he was struck, and the train came to a stop about 33 feet after striking him, thus this train was stopped in a space of 165 feet, and according to the contention of the administrator, the engineer said to some neighbors, who had come there shortly after the boy was struck, "I saw him but thought I could signal him off." No evidence was introduced on behalf of the defendant. There was no proof that the train could have been stopped any sooner than it was. In view of the fact that this was a heavy train consisting of 60 cars of coal, it must be admitted that it was promptly stopped after the alarm was given. There is no evidence that the agents of the defendant in charge of this train saw this boy at all, except the inference that can be drawn from the fact that this alarm was given and this train was stopped shortly after the boy was struck, save the statement of the engineer referred to above.

It is admitted that the deceased was a trespasser, therefore the burden rests upon his administrator to show that the agents of the defendant in charge of this train discovered, not only the presence, but also the peril, of the deceased in time by exercise of ordinary care to have avoided injury to him by use of the means they had at hand. The administrator argues that, because these agents of the defendant could have seen the deceased when they were 924 feet from him, therefore it may be inferred they did see him, and, if they did, that they could have seen he was asleep, and should have stopped this train in time to have avoided injuring him. The trouble with the contention of the administrator is that it fails to note the distinction between an inference and a supposition. An "inference" is a conclusion drawn by reason from facts established by proof; "a deduction or conclusion from facts or propositions known to be true." Parsons v. Baltimore B. & L. Ass'n, 44 W.Va. 335, 29 S.E. 999, 67 Am. St. Rep. 769. An "inference" is the conclusion drawn on reason from premises established by proof. Wright v. Conway, 34 Wyo. 1, 242 P. 1107. A supposition is a conjecture based on the possibility that a thing could have happened. It is an idea or a notion founded on the probability that a thing may have occurred, but without proof that it did occur. Conceding but not deciding that it was possible for the agents of the defendant to have seen this boy 924 feet before they struck him, there is no proof that they did see him at that distance or at any other point previous to the sounding of the alarm and the application of the brakes, which was 132 feet before the train hit him, or that, if he was seen sooner, his peril was discovered sooner.

The administrator in support of this judgment has cited a vast number of cases, and to discuss them all would be needless; but we shall discuss some of them which, he insists, are directly in point.

The judgment in L. & N. R. Co. v. Clemmons, 218 Ky. 808, 292 S.W. 506, was affirmed because the engineer was keeping a lookout, saw the peril of the trespasser when 300 feet from him, shut off the steam, and applied the brakes, but omitted to sound any alarm of any kind.

The case of L. & N. R. Co. v. Spicer, 187 Ky. 601, 219 S.W. 1047, was affirmed because...