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

• Decision Date: 29 January 1908
• Citation: 107 S.W. 217
• Parties: LOUISVILLE & N. R. CO. v. MOLLOY'S ADM'X.
• Court: Kentucky Court of Appeals

107 S.W. 217

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

Court of Appeals of Kentucky.

January 29, 1908

Appeal from Circuit Court, Barren County.

"Not to be officially reported."

Action by Sam C. Molloy's administratrix, for intestate's death, against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin D. Warfield, C. H. Moorman, and Sims, Du Bose & Rodes, for appellant.

T. W. &amp R. C. P. Thomas, Greer & Marble, and Baird & Richardson, for appellee.

CLAY C.

This is the second appeal of this case. The opinion on the first appeal will be found in 91 S.W. 685, 28 Ky. Law Rep. 1113. On the 27th day of March, 1904, Sam C. Molloy, an attorney, on his way to Brownsville to attend court the next day, reached Glasgow Junction on the morning train, and hired L. H. Oller a liveryman, to take him over to Brownsville in a buggy. They started for Brownsville at about 12 o'clock. From the hotel from which they started the road to Brownsville runs for about a quarter of a mile parallel with the Louisville &amp Nashville Railroad Company's track, and then turns abruptly to the right, going up a slight incline across the railroad track. When the horses reached the track, a freight train going south, running rapidly, struck the horses and the vehicle, killing Molloy, and seriously injuring Oller. On the first trial of the case Molloy's administratrix recovered a judgment for $9,000. This judgment was reversed. Upon the second trial she obtained a verdict of $5,000. From the judgment entered thereon, this appeal is prosecuted.

A very full and accurate statement showing the circumstances of Molloy's death, as well as the surroundings at the place of the accident, is contained in the opinion above referred to. The evidence in the record before us is substantially the same as that contained in the former record. The evidence for the appellee is as follows: Molloy was a stranger at Glasgow Junction, where the accident occurred; had never been there before. He did not know the way, or the time of the arrival of the train. Before getting in the buggy he looked to see if a train was coming, and inquired if one was coming. The train that killed him was the second section of No. 11. It had no schedule time, and was late. No one knew it was coming. Molloy was sitting on the right side of the buggy, the top of which was partly up. The road over which they traveled from the Mentz hotel to the crossing was parallel, or nearly so with the railroad. The road was rough until within a short distance of the crossing. The horses traveled in a trot at the rate of four or five miles per hour. The buggy was going in the same direction as the train--towards the south. The backs of the occupants of the buggy were toward the train leaving the Mentz hotel. On account of the passenger and freight depots and other obstructions the train of cars could not be seen until after reaching the passenger depot. The distance between the passenger depot and the crossing was 1,200 feet. The train was running at from 30 to 45 miles an hour. It had about reached the passenger depot when the buggy was approaching the crossing. The speed of the train was 8 or 10 times faster than that of the buggy. The engine was some 600 feet from the crossing when the engineer leaned out of his cab and waved to a lady. No signals were given for the crossing. No bells were rung, nor whistles blown after reaching the Hazelip crossing, which was north of the passenger depot. The engine, after striking the buggy, ran about 2,400 feet, or nearly half a mile. Neither Molloy nor Oller saw the train until the buggy was about 20 feet from the track. At the time of reaching the track the horses had slowed down to a walk. When the buggy was about 20 feet from the track, Oller looked in one direction and Molloy in another. Molloy then said: "Whoop, whoop, there is the train." By that time one of the horses had his feet over the track. Molloy grabbed the lines, and attempted to escape the impending danger by pulling the horses off the track. At that time he was struck and killed. On the other hand, the evidence for the appellant is as follows: From 7 to 9 blasts of the whistle were given between the tunnel and the passenger depot. The train of cars made much noise. The blasts of the whistle above the passenger depot could have been heard, and were heard about a mile. The bell was rung continuously from the tunnel to the crossing. Molloy, or one of the men in the buggy, whipped the horses, and apparently attempted to defeat the train in a race to the crossing. There is no obstruction south of the passenger depot. The engineer did not see the...