Louisville & N.R. Co. v. Crow

• Decision Date: 28 February 1908
• Citation: 107 S.W. 807
• Parties: LOUISVILLE & N. R. CO. v. CROW.
• Court: Kentucky Court of Appeals

107 S.W. 807

LOUISVILLE & N. R. CO. v. CROW.

Court of Appeals of Kentucky.

February 28, 1908

Appeal from Circuit Court, Todd County.

"Not to be officially reported."

Action by T. D. Crow against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Perkins & Trimble and Benjamin D. Warfield, for appellant.

S. W Forgy and Petrie & Standard, for appellee.

CLAY C.

Appellee T. D. Crow, was section foreman for appellant, Louisville &amp Nashville Railroad Company. On January 16, 1906, he was at work with his crew on the line of appellant's road about 1 1/2 miles north of the village of Hadensville. He stopped work on that day at about 5:20 p. m. It was then dark. He and his crew started to return to Guthrie on a hand car. There was no regular train due at that time. Before starting appellee looked up and down the track and listened for the approach of a train. He then took his seat on the hand car, and instructed his men to keep a watch out in front. About a mile north of Guthrie the hand car was struck by a freight train and engine. From the point where the hand car was struck, back towards Russellville, the direction from which the freight train approached, there was over a mile of straight track, and nothing to prevent appellee or his crew from seeing a headlight on an engine. The train which struck the hand car was running at from 25 to 40 miles an hour, without a headlight. The sectionmen discovered the approach of the train when it was about 60 or 70 feet from them, and all jumped off except appellee. Just before the accident W. N. Davis, a member of the crew, exclaimed: "Look out! a train is coming"--and appellee says that when he heard this he supposed the train was a mile and a half away, as the light could easily be seen that distance; that he applied the brake to the hand car at once, with a view of taking same off the track; and that Davis again exclaimed: "It is right on us!" At that time appellee had his foot on the brake, and whirled in his seat, and attempted to roll off, when he was struck by the engine. The wind was blowing in the direction of the train, and prevented the crew on the hand car from hearing the noise of its approach. The engineer and fireman both testify that the headlight of the engine was lighted at Russellville; but it is not claimed that there was any light burning at the time the engine struck the hand car. Appellant defended on the ground of contributory negligence, claiming that its rules required that the section boss should have at all times upon his hand car a red and white lantern, and upon the occasion in question the appellee had no lantern or light of any kind to warn approaching trains of his presence on the track. Appellee introduced evidence to the effect that this rule with reference to lanterns was habitually disregarded. The jury returned a verdict for appellee in the sum of $6,073. From an order overruling its motion and grounds for a new trial, appellant prosecutes this appeal.

Among the errors assigned as grounds for reversal is improper argument on the part of counsel for appellee. It appears that in the closing argument one of the attorneys for appellee told the jury that "Hettie Green and John D. Rockefeller and other millionaires owned the greater part of the stock of the Louisville & Nashville Railroad Company, and that they were amply able to lose the amount claimed by plaintiff; that they were mean, and oppressed the people, and ought to be punished for it; and that Hettie Green was so mean that she would not let her husband sleep in the bed with her." Appellant objected to the use of this language, but the court...