Louisville & N. R. R. Co. v. Filbern's Adm'x
| Decision Date | 17 February 1869 |
| Citation | 69 Ky. 574 |
| Parties | Louisville & Nashville R. R. Co. v. Filbern's adm'x. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
I. & J CALDWELL, For Appellant,
Revised Statutes, sec. 3, Act of March 10, 1854, 2 Stanton, 510.
2 Duvall, 576, Board of Int. Imp. Shelby County v. Scearce.
Sedgwick on Damages, pages 93, 143, 468.
4 Bush 508,Louisville & Nashville Railroad Co. v. Robinson.
22 Ind 29, 30, Thayer v. St. Louis, Alton & T. H. R. R. Co.
Pearce on American Railways, pages 296, 297, 257, 262, 293.
49 Barbour, 324, Faulkner v. Erie Railway Company.
25 New York, 562.
28 Ind 371, Ohio & Miss. Railroad Co. v. Hammersley.
23 Ind. 81, Slattery's adm'r v. Toledo & Wabash Railroad Co.
11 Ohio 417, Manville v. The Cleveland & Toledo Railroad Co.
8 Ohio 249, Whalan v. Mad River & Lake Erie Railroad Co.
49 Mass. (4 Met.) 49, Farwell v. Boston & Worcester Railroad Co.
2 Duvall, 114, Louisville & Nashville Railroad Co. v. Collins.
Am. Law Reg. March, 1869, pages 155-6, Ohio & Miss. Railroad Co. v. Thomas.
E. S. WORTHINGTON, BUNCH & YOUNG, For Appellee,
CITED
Revised Statutes, 2 Stanton, 510, 511, 512.
4 Bush, 507,Louisville & Nashville Railroad Co. v. Robinson.
14 B. Mon. 204, Eden v. L. & F. Railroad Co.
2 Duvall, 577, Board of Int. Imp. Shelby County v. Scearce.
During a storm, which occurred on the night of the 16th of March, 1868, a dead and partially decayed oaktree, which stood on the road-bed and near the track of the Louisville & Nashville Railroad, fell across the track?? by which the engine of an express-train, on its way from Nashville to Louisville, was thrown from the track, and Thomas Filbern, the engineer, was instantly killed.
The widow of Filbern, having become his administratrix, brought this action against the railroad company for the recovery of punitive damages, under the provisions of " an act for the redress of injuries arising from the neglect or misconduct of railroad companies, and others" (2 Revised Statutes, 510); the petition alleging in substance that the life of the plaintiff's intestate was lost in consequence of the willful neglect of the defendant in failing theretofore to remove the tree.
The answer of the defendant controverted the allegations of the petition, importing the charge of willful neglect; and also set forth as a defense that said Thomas Filbern, by his own neglect and want of care as an engineer in the service of the defendant, contributed to and caused the accident which was the immediate cause of his death.
A trial of the case resulted in a verdict and judgment for the plaintiff for ten thousand dollars, and the court having refused to grant the defendant a new trial, it has appealed to this court.
Of the evidence it may suffice to say that, from the dead and decaying condition of said tree, and its proximity to the road, there had long been such apparent danger of its falling on the track, and thus imperiling the lives of passengers and employees on the road, as to require its removal; and therefore negligence, in some degree, was implied by the failure of the officers and agents of the corporation to remove it; and, moreover, the attention of the " " section-boss," an officer subordinate to an engineer, and subject to his orders, had been drawn to the necessity of removing the tree but recently before the disaster; yet the danger and consequent necessity of removing the tree might have been observed by Filbern as well as by other employees engaged in running trains on the road; and if they were it was his duty to cause the removal of the tree, or report the necessity of doing so to some superior officer.
The questions presented for the decision of this court, so far as deemed essential, involve the action of the court below in relation to instructions to the jury. Rejecting several instructions asked by each party, the court, of its own motion, instructed the jury, in substance, that it was the duty of the corporation to keep the road free from all objects and obstructions which might imperil the safe transit of trains; and that duty rested on all its agents engaged upon the road in the transit of trains, and especially on the road-master and his subordinates, the " section-bosses; " and if the jury believed from the evidence that either of these knew or was notified that said tree was decayed, and from its condition subject to fall or be blown down across the road, and thus imperil the safe transit of trains, and was so apprised long enough to have removed the peril, and failed to do so, such failure was willful neglect within the meaning of the statute. And if the jury further believed from the evidence that the death of Filbern was caused by such neglect, and that he could not, by the use of ordinary care and diligence on his part as an employee of the defendant, have avoided the consequences of such neglect, the law was for the plaintiff and they should so find. If, however, Filbern, as engineer or employee of the defendant, by the use of ordinary care and diligence on his part, could have avoided the consequences of said neglect, and...
To continue reading
Request your trial