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

• Decision Date: 14 January 1904
• Parties: LOUISVILLE & N. R. CO. v. VANARSDELL'S ADM'R.
• Court: Kentucky Court of Appeals

77 S.W. 1103

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

Court of Appeals of Kentucky.

January 14, 1904

Appeal from Circuit Court, Boyle County.

"Not to be officially reported."

Action by Mary Vanarsdell's administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. R McDowell, J. W. Alcorn, and B. D. Warfield, for appellant.

Rawlings & Voris and Robt. Harding, for appellee.

O'REAR J.

This is the second appeal of this case. The opinion upon the first appeal, which states the facts as they appeared substantially on the last trial so far as the proof for appellee is concerned, may be found in 65 S.W. 858. The jury found a verdict of $2,500 for appellee. There is no material error to be found in the instructions of the court. The evidence objected to was considered upon the former appeal, and the objections to it there disposed of. The criticism urged against the same evidence upon this appeal goes more, in our opinion, to affect the weight than the competency of the evidence. After all, it was a matter for the jury. Perhaps the weight of the evidence is for appellant, and the physical facts, taken in connection with appellant's evidence barring one exception, are strongly persuasive that the verdict is not sustained by the proof in the case. The exception is that under all of the evidence it is clearly shown that by the proper application of the means at hand by the servants in charge of appellant's train, after they had discovered the peril of the child upon the bridge, the train could have been stopped anyhow within 1,200 or 1,800 feet. As a matter of fact the train was not stopped at all until it had run more than twice that distance. This is not explained satisfactorily, and doubtless convinced the jury that the application of the brakes and other means to control the train was not made until the locomotive was so close to the bridge upon which the child was killed that they were then unavailing. This does not find that the engineer in charge purposely ran over the child. He may have at the time thought that she would be able to get off of the bridge as the other children did, and therefore did not take every precaution that the subsequent developments have shown was necessary to save the child's life. This was a mistake of judgment, doubtless an honest mistake. But it is a mistake of that character for which the court is...