Louisville & N.R. Co. v. Logsdon

• Decision Date: 10 February 1903
• Parties: LOUISVILLE & N. R. CO. v. LOGSDON.
• Court: Kentucky Court of Appeals

71 S.W. 905

114 Ky. 746

LOUISVILLE & N. R. CO. v. LOGSDON.

Court of Appeals of Kentucky.

February 10, 1903

Appeal from circuit court, Hart county.

"To be officially reported."

Action by W. E. Logsdon against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

B. D Warfield, E. W. Hines, and J. A. Mitchell, for appellant.

W. S Pryor and S. M. Payton, for appellee.

HOBSON J.

Appellee Logsdon, who is 22 years of age, was helping his father load a car with lumber at Munfordville, Ky. in April, 1901, on a side track of appellant's road at that point. While they were in the car, loading it, a freight train pulled in on the main line about opposite to them. The engine then went up to the switch with a flat car loaded with rock, and sent it down on the side track on which the car stood in which they were working. A brakeman was on the rock car, and undertook to stop it before it reached the car in which they were working but, either from the force with which it was sent in, or its weight, or the fault of the brake or of the brakeman, the car was not stopped, and collided with the other car with great force. The brakeman jumped off just before the collision. Appellee's father also jumped off their car, and called to appellee to jump, but he did not understand, and, before he could get out, the collision occurred, jamming the lumber against his ankle, breaking one of the bones, and painfully injuring it. The freight car had been set there by the company for them to load, and the trainmen saw it there before they jerked the rock car in. By "jerking a car in" is meant giving it a jerk with the engine, and letting it run without the engine being attached to it. The jury found for appellee, and fixed his damages at $8,000.

Instruction 1 given by the court is in these words: "If you shall believe from the evidence that the plaintiff came upon the premises of the defendant at the request of his father, and at his request engaged in loading a car with lumber that had been engaged by his father from the defendant for the shipment of his lumber over the road of the defendant, and that while plaintiff was so there and so engaged the defendant, its agents or employés, in control and management of its engine and cars, did negligently push, shove, or throw one of its said cars against the one which had been let to his father, and in which plaintiff was located in loading said car, if he was so located, and thereby catch and injure him in said lumber and car, you should find for the plaintiff the damages which he sustained thereby, taking into your consideration the time he has lost or may hereafter lose, if any, the pain and suffering he has endured or may hereafter endure, if any, the disability to labor, move about, and enjoy life which he has suffered or may hereafter suffer, if any, directly resulting to him from said injuries, and the expense he has incurred or may hereafter necessarily incur, if any, in the treatment of his said injuries, not to exceed in all the amount sued for herein, which is $20,000." This...