Louisville & N.R. Co. v. Gilliam's Adm'x

• Decision Date: 05 February 1903
• Citation: 71 S.W. 863
• Parties: LOUISVILLE & N. R. CO. v. GILLIAM'S ADM'X.
• Court: Kentucky Court of Appeals

71 S.W. 863

LOUISVILLE & N. R. CO. v. GILLIAM'S ADM'X.

Court of Appeals of Kentucky.

February 5, 1903

Appeal from circuit court, Logan county.

"Not to be officially reported."

Action by J. H. Gilliam's administratrix against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F Browder, J. C. Browder, B. D. Warfield, and Edward W. Hines for appellant.

B. F Proctor, for appellee.

NUNN J.

The appellant has appealed from a judgment of the Logan circuit court against it for the sum of $10,000 in favor of appellee for the death of her intestate, J. H. Gilliam, caused by the negligence of its agents and servants superior in authority to him. The facts, in substance, are as follows: The decedent was a fireman on the train of appellant, composed of an engine and tender, 13 box cars, a passenger coach, and a caboose. The box cars were loaded, and the seven box cars next to the engine had air brakes; the others without air brakes. The train crew was composed of a conductor, engineer three brakemen, and a fireman, the deceased. This train and crew started from Russellville to Owensboro, Ky. on the morning of the 13th of February, 1900. The last stop made before Gilliam lost his life at Pettit station was at Crow Hickman, about four miles from Pettit. Between these two stations the train parted in some way, not known, and in stopping the train for the engine to take water at Pettit the detached portion ran against the front part, and the collision knocked the intestate off of the tender, where he had gone in the discharge of his duty to adjust the spout of the water tank to take water. He was badly bruised, and unconscious when found, and died in a few hours. The proof in the record shows that the conductor was in the passenger coach, making out a report of his trip; one brakeman was on the passenger coach with him; the front brakeman was in the cab with the engineer; and the other, or middle, brakeman was not located on the train (he did not testify). One witness stated that at the time or immediately after the collision he saw him sliding down a rod on the caboose. Some half a dozen witnesses who lived at Pettit and along the railroad track back in the direction of Crow Hickman state that they did not see any one on the train of cars except the brakeman who was on the front end of the passenger coach, and appeared to be setting the brake. The first witness who saw that the train had parted was about a mile back from Pettit, and stated that the sections were about 250 yards apart then, and that the detached portion was gaining on the front portion; and the next witness, about a half mile from Pettit, stated that when the train passed him the sections were about three car lengths apart, and the rear section was gaining on the front and when the train arrived at Pettit the witnesses vary from one to two car lengths apart. The water tank is 300 or 400 yards further on. The conductor, engineer, and the two brakemen who testified stated that they did not know that the train had parted, nor what caused it; that the track was straight, and there were some high and some lower cars in the train, and the high cars cut off their view, and therefore they did not see the break in the train. Not one of them states that he made any effort to see the condition of the train between said stations, nor was there a brakeman in his proper place or position on the train, and the engineer and conductor both knew of this fact, and made no...