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

• Decision Date: 15 January 1909
• Citation: 131 Ky. 347,115 S.W. 196
• Parties: LOUISVILLE & N. R. CO. v. KING'S ADM'R.
• Court: Kentucky Court of Appeals

115 S.W. 196

131 Ky. 347

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

Court of Appeals of Kentucky.

January 15, 1909

Appeal from Circuit Court, Bullitt County.

"To be officially reported."

Death action by Bartley King, administrator of W. T. King, against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Nunn J., dissenting.

Charles Carroll, Charles H. Moorman, and Benjamin D. Warfield, for appellant.

Bennett H. Young, for appellee.

CLAY C.

Bartley King, as administrator of W. T. King, instituted this action against the Louisville & Nashville Railroad Company to recover damages growing out of the death of the decedent. The jury awarded plaintiff damages in the sum of $8,000. From the judgment based thereon the railroad company prosecutes this appeal.

A reversal is asked upon three grounds: First, the failure to give a peremptory instruction in favor of defendant; second misconduct of counsel; third, the refusal of the court to give an instruction offered by defendant.

The facts in the case are as follows: W. T. King at the time of his death was an employé of defendant, acting as conductor of a work train which was being operated in the vicinity of Bardstown Junction, in Bullitt county. Bardstown Junction is the point at which appellant's Bardstown and Springfield branch road diverges from the main line of its railway. For a considerable distance north and south of Bardstown Junction the defendant's road is double tracked. About 4 o'clock on the afternoon of July 15, 1907, the work train of which King was conductor was stationed on the south-bound main track, a few hundred yards north of Bardstown Junction. It was necessary to move this train to permit the passage of a through train bound southward from Louisville. With this object in view, the work train was backed south on the south-bound main track with the intention on the part of those in charge of the train to switch it into what is known as the "Y track." While the train was backing south, King, the conductor, and Ryan, the rear flagman, were stationed upon the rear platform of the caboose, which at that time was the leading part of the train. Just as the caboose passed over the north switch connecting the main tracks with the Bardstown and Springfield branch, the switch was thrown under the caboose, or the car next to it, and both were derailed. King was thrown from the platform, and instantly killed. The switches at Bardstown Junction are manipulated by levers from the office of the company's station agent. The depot is but a short distance south of the switch that was thrown under the work train. Upon the occasion in question, the levers were operated by a young man named Louis Crigler, who held the position of assistant agent. According to the testimony for plaintiff, there was no purpose upon the part of those in charge of the work train to take the switch at the place of the accident. They intended to go further down the track and enter the Y where the switch was operated by trainmen, and not from the office of the station agent. At the time Crigler threw the switch he did not know what the work train crew proposed doing, and there was therefore no necessity for throwing the switch. Defendant's defense consisted of general denials of the allegations of the petition and a plea of contributory negligence. According to its evidence, there were a number of levers in the depot which it was necessary to operate in order to change the various tracks and switches and give the various signals required at that point. None of these levers which controlled the signal board or switches at that point, could be moved until the lever which controlled the signal board indicating the danger or stop signal was operated. After the danger or stop signal was given, then the other levers used to operate the switches and cross-tracks could be moved. Upon the occasion in question the signal was given that the train upon which plaintiff's intestate was conductor was coming down the south-bound main track for the purpose of crossing over to the main branch of the Springfield line. When this signal was given, the agent's assistant immediately moved the lever which controlled the danger signal. This was a signal to plaintiff's intestate that the switches were being moved, and not to bring his train forward to the switch until the switch was moved, the red signal lowered, and a safety, or white signal raised. The red signal was raised at a time when the work train was several hundred feet from the switch, and in plenty of time for the train to have been stopped. Plaintiff's witnesses denied that the red signal was raised. We have not attempted to give the evidence in detail, but suffice it to say there was abundant evidence upon which to submit the case to the jury, and the court did not err in refusing to give a peremptory instruction in favor of the defendant. In view of the fact that we have determined to reverse this case on other grounds, it will not be necessary to consider the alleged misconduct of counsel.

Appellant's main ground for reversal is the failure of the court to give the following instruction: "(a) If the jury believe from the evidence that, before plaintiff's intestate approached the point where he received the injury which resulted in his death, the signal had been given which required him to stop his...