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

• Decision Date: 16 April 1908
• Citation: 131 Ky. 132,109 S.W. 321
• Parties: LOUISVILLE & N. R. CO. v. GILMORE'S ADM'R.
• Court: Kentucky Court of Appeals

109 S.W. 321

131 Ky. 132

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

Court of Appeals of Kentucky.

April 16, 1908

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"Not to be officially reported."

Action by Julia Gilmore's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed.

Helm &amp Helm, Benjamin, D. Warfield, and H. L. Stone, for appellant.

Forcht & Field and Dodd & Dodd, for appellee.

CLAY C. T. M.

Gilmore, administrator of Julia Gilmore, instituted this action against appellant, Louisville & Nashville Railroad Company, to recover damages for the death of Julia Gilmore, which is alleged to have resulted from the negligence of appellant. From a judgment for $5,000 in favor of appellee, this appeal is prosecuted.

The death of Mrs. Gilmore occurred under the following circumstances: Appellant maintains double tracks between Louisville and Cincinnati which, in the former city, parallel Frankfort avenue, a public thoroughfare, for a distance of about two miles, the street being on the south and the tracks on the north. Running northwardly from Frankfort avenue and crossing appellant's tracks are various public streets. One of these streets--Bayly avenue--which is located about three-fourths of a mile within the eastern limits of Louisville, extends from Frankfort avenue two squares northward to Field avenue. At the time of the accident double tracks were also maintained on Frankfort avenue by the Louisville Railway Company. These tracks, at a point opposite Bayly avenue, merge into a single track, which thereafter continues eastwardly for several hundred feet, and then changes into a double track opposite Crescent avenue. About 160 feet west of Bayly avenue is an alley extending from the north to the right of way of appellant on the south, and opening thereon. Immediately opposite the mouth of this alley, and on the south side of Frankfort avenue, is Moore's drug store. At the time of the accident there was a plank opposite the mouth of the alley, which led across a ditch on the north side of appellant's right of way. On the south side of appellant's right of way there was a ditch, across which a log or cross-tie was placed. Beginning at a point some 200 or 300 feet east of Bayly avenue the tracks of appellant describe a curve, the outer rim being to the north and ending between Bayly avenue and the alley. On the line between Frankfort avenue and the right of way are telephone, telegraph, electric light, and trolley poles. The street is slightly elevated above the tracks. At a point about 1,000 feet east of the place of the accident the elevation is about 5 feet.

The death of Mrs. Gilmore occurred about 5 o'clock on the afternoon of July 4, 1905. The testimony shows that she left the rear of her premises and crossed the tracks of appellant and Frankfort avenue, and went to Moore's drug store on the south side of Frankfort avenue. Leaving the drug store at which time it was broad daylight, she allowed an interurban car of the Pewee Valley line to pass. At the time there was a Fourth of July picnic in progress at a Catholic institution in the neighborhood, and a great many street cars of the Louisville Railway Company were passing to and fro. Children of the neighborhood were shooting firecrackers and torpedoes on the sidewalk and in the street adjacent to the drug store, and considerable confusion prevailed. Mrs. Gilmore walked rapidly across the street, a distance of 64 feet; thence 20 feet more on to the first or southernmost track of appellant; thence 10 feet more, close to, but not on, the second track, where she was struck. The train that struck Mrs. Gilmore was a freight train consisting of an engine, 22 loaded and 2 empty cars, and a caboose. It was on time, and was running at about 12 to 15 miles per hour. When the accident occurred the engineer was keeping a lookout, and the bell of the engine was ringing. The fireman was also on a lookout until the engine was within a few feet of Bayly avenue. After looking ahead and seeing no...