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

• Decision Date: 21 January 1903
• Citation: 71 S.W. 518
• Parties: LOUISVILLE & N. R. CO. v. MOUNCE'S ADM'R.
• Court: Kentucky Court of Appeals

71 S.W. 518

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

Court of Appeals of Kentucky.

January 21, 1903

Appeal from circuit court, Rockcastle county.

"Not to be officially reported."

Action by Wm. M. Mounce's administrator against the Louisville &amp Nashville Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

J. W Alcorn and Edward W. Hines, for appellant.

Robt. Harding, John W. Rawlings, and Williams & Williams, for appellee.

BURNAM C.J.

William M. Mounce was killed in a railroad collision while in the employment of the Louisville & Nashville Railroad Company as night switchman in their terminal yards at Livingston, Ky. in January, 1900, and this action was instituted by his administrator for the recovery of damages for the loss of his life. He alleges that the defendant had maintained in its switch yard at Livingston certain fixed switch lights for the purpose of locating the switches and tracks upon which they moved its trains and cars from one track to another, and which served as guides to his intestate in discharging the duties assigned to him, and without which it was unsafe to do so; that on the night on which he was killed certain of these switch lights were not burning, and in consequence thereof while transferring a number of cars from one track to another, he by mistake threw open the wrong switch, and the cars which he was transferring were run on the main track instead of onto a side track, and collided with the cars of a train standing thereon; that he was killed in the collision while in the discharge of his duty. The answer of the defendant is a traverse of all the averments of the petition and a plea of contributory negligence. It is conceded that the deceased was defendant's night switchman in its yards at Livingston, and that it was his duty, under orders from the yardmaster, to transfer cars from one to another of the tracks in making up the trains at that point, and that in the discharge of these duties he had at his command the yard engine, manned by the engineer and fireman. The yards ran north and south, and the engine always headed south. The switchman was required to carry a large lantern. For many years the company had maintained at each switch a stand about 18 inches high, on which was placed what was known as a target, composed of two cross-pieces of sheet iron at right angles to each other, one painted red and the other painted white. If the white target stood at right angles to the track, it showed that the switch was closed, but if the red target was at right angles to the track it showed that the switch was open. At night lamps were used in place of these sheet iron targets, which showed lights from four sides. On the front and rear the lights were white, and on the side they were red. The position of the target is always changed by throwing the switch. If it shows white before the switch is thrown, it becomes red thereafter, and vice versa. The purpose of these targets was to enable the switchman approaching the switch to easily locate the switch, and know whether it was open or closed. And if it was closed his duty required that he should descend from his train, go to the switch, and turn it; and the testimony is uncontradicted that, after throwing the switch, and before giving the signal to the engineer to move forward, it was the duty of the switchman to examine the switch rails to see that they were in proper position, and led to the track to which the cars were to be transferred. If the switch was a single one, a single light was maintained at the point, but at one point in the yard the company maintained what was known as a double switch light, which consisted of two lights about six feet apart, one of which marked the place where what was known as a "cross-over track" led north to the main track from the passing track, and the other marked the place where the cross-over track led south to the main track from the passing track. At this point the yard is bounded on the east by Roundstone creek, and on the west by a series of coal bins 25 or 30 feet high. On the night of Mounce's death he was directed by the yardmaster to transfer "two cabooses and a car load of coal," which were standing coupled together on the passing track, and place them on what is known as the "river track" or track "No. 4," which was the extreme eastern side track in the yards, and which is to the left of the passing track looking south. The switch from the passing track to track No. 4 was a single switch, but about 100 feet north of it was the double switch spoken of above. The cabooses and car were standing about 500 feet south of the switch which led to No. 4 track, and were ahead of the engine. To comply with the orders of the yard master, the deceased had to...