Louisville & N. R. R. Co. v. Davis

• Decision Date: 27 January 1903
• Citation: 115 Ky. 270
• Parties: Louisville & N. R. R. Co. v. Davis.
• Court: Kentucky Court of Appeals

115 Ky. 270

Louisville & N. R. R. Co. v. Davis.

Court of Appeals of Kentucky.

January 27, 1903.

APPEAL FROM EDMONSON CIRCUIT COURT.

JUDGMENT FO PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED.

JAMES A. MITCHELL AND EDWARD W. HINES, FOR APPELLANT.

B. F. PROCTER AND GUY HERDMAN, FOR APPELLEE.

OPINION OF THE COURT BY JUDGE HOBSON — AFFIRMING.

Appellee, W. E. Davis, on December 22, 1900, was a track walker in the service of appellant on its section near Rocky Hill station. As he was going along the track in the discharge of his duty, he saw a train coming, and got to one side, as usual When the train was something like 200 yards, from him, he heard a rattling, and saw rocks throwing out. He then aimed to get further away, and as he turned around the rocks hit him in the side, on the leg, and up in the back before he had time to get away. The train was going south, running something like fifty miles an hour. The rocks were thrown out by a rod or something of that sort under the bottom of the train, which was dragging against the ballast and ties. Appellee had been south to the end of his section, and was returning. As he went down, there were no dents upon the ties or ballast, but from the point where he was struck, for something over a mile back, there were dents in the ties and in the ballast, evidently made by the object which threw the rocks out. These dents continued for a mile or more beyond the point where he was hurt, and at the point where they stopped an iron rod was found, six feet long or more, and nearly an inch in diameter. In some places it struck the cross-ties and at others it struck the ballast. It is shown by the proof that when anything gets down under a train it will throw out the ballast in this way. Appellee had seen it happen before, but not so bad as this. It is also shown by the proof that, although these dents upon the track continued for something over two miles, no one on the train, so far as the proof shows, knew anything of the trouble, or took any steps to right it. The proof for the defendant shows that the cars of the train were inspected at Bowling Green, and were there found to be all right; also that they were inspected at Louisville before it left there, and was then found to be all right. As to the extent of appellee's injury, the proof is very conflicting, although there seems to be no doubt under all the evidence as to the fact of his being injured as above stated. The proof on his behalf shows that shortly afterwards he was taken very sick, and for two or three weeks was out of his head; that there was a hard place in his back, and he passed from his bladder a quantity of pus and blood; that after this his capacity to labor was substantially destroyed, and that his injury was probably permanent. The proof for the defendant shows that appellee did not regard his injury as serious at first, and that he had no trouble until he had a violent attack of colic. This, however, would not account for the pus and blood passed from his bladder, nor for other symptoms shown by the evidence. The extent of the injury was a question for the jury, and their verdict fixing the compensation for appellee therefor at $3,000 is not excessive, or palpably against the evidence, if he was entitled to recover.

It is earnestly maintained for appellant that no negligence on its part is shown, as all the facts established are as consistent with the hypothesis of unavoidable accident as that of negligence; and that, the burden being upon the plaintiff to show negligence, he has failed to make out his case. While it is true that the train might have picked up a rod or beam, and dragged it along the track, knocking out the rocks, without the knowledge of those in charge of the train, we are doubtful if they would be excusable for not finding this out in two miles and a quarter; as the proof shows that, when anything gets loose, scattering the ballast under the car, some of the rock will hit the bottom of the car, and a noise is made, so that those running the train know of it when it occurs. Appellee was in no way connected with the running of the train. He was in his proper place, and in the discharge of his duty. He is not chargeable with the negligence of those in charge of the train, for they were in a separate and distinct service from him. It was the duty of appellant to exercise reasonable care in the operation of its trains for the protection of those in its service along its...