Louisville & Nashville R. R. Co. v. McGary's Admr.

• Decision Date: 15 October 1898
• Parties: Louisville & Nashville R. R. Co. v. McGary's Administrator.
• Court: Kentucky Court of Appeals

Page 509

104 Ky. 509

Louisville & Nashville R. R. Co. v. McGary's Administrator.

Court of Appeals of Kentucky.

October 15, 1898.

APPEAL FROM HOPKINS CIRCUIT COURT.

B. D. WARFIELD FOR APPELLANT. (H. W. BRUCE, WM. LINDSAY AND GORDON & GORDON OF COUNSEL.)

GORDON & GORDON, ALSO FOR APPELLANT. (B. D. WARFIELD AND H. W. BRUCE OF COUNSEL.)

JAMES BREATHITT, W. T. FOWLER AND PETRIE & DOWNER FOR APPELLEE.

JUDGE Du RELLE DELIVERED THE OPINION OF THE COURT.

The appellee brought suit against appellant company, alleging that his intestate, who was a brakeman, received injuries, from which he died, while engaged upon a freight train of appellant; that the "train was thrown from the track near Robard's station, in Henderson county, Kentucky, and the said C. C. McGary received serious bodily injuries, from which he died; . . . that twenty-two cars were thrown from the track in the said wreck, and that the derailment of said train was caused by the defective condition of the roadbed at the point where said train was thrown from the track; that there had been, a few days prior to said accident, a slipping of the earth or roadbed from under the track, and that on the day of said accident the section boss and hands were at work at said point; that, in addition to the defective condition of said roadbed, the right of way at said point had grown up with weeds and bushes close up to said railroad tracks, and that old logs and cross-ties were piled up close to said road, and that said train at said time was running at a dangerous and reckless rate of speed, and came in contact with a yearling calf, which could not be seen on account of said bushes, weeds, and logs. The plaintiff charges that said accident was caused by the gross negligence of said defendant, its agents and servants, in not keeping said roadbed in a safe condition, and by the gross negligence of the agents and servants of the defendant superior to plaintiff's decedent in authority, in the running of said train at a dangerous and reckless speed at the point of said wreck, and over and upon said calf, and upon allowing said weeds, bushes, and logs to lie so near the roadbed as to obstruct the view of said agents and servants who operated said train. The plaintiff says that the condition of said roadbed had been well known to the defendant, and its servants and agents, for some days prior to said accident, and in sufficient time to have put said roadbed in safe condition prior to said accident; and he further charges that the dangerous condition of said roadbed was well known to defendant's agents and servants, whose duty it was to keep said roadbed in proper condition, and that its dangerous condition was known to them for sufficient length of time to have put same in repair in time to have avoided said accident and injury to the plaintiff's decedent; and he further charges that the dangerous and unsafe condition of said roadbed was well known to the agents and servants of the defendant in charge of and running said train, and who were superior in authority to said decedent." By an amended petition, the plaintiff said that he was in error in stating that, at the point where his intestate was injured, weeds and bushes had been permitted by defendant to grow upon the side of the track so as to obstruct the view of the operators of defendant's train; "but plaintiff now charges that at the point where said C. C. McGary was injured, and from which he died, that the track of defendant's road is straight for a great distance, and that there was nothing to prevent the agents of defendant who were operating said train from seeing any object on the track for a great distance at that point. Plaintiff further charges that a lot of cattle came upon defendant's track at or about said point of wreck, and defendant's engineer negligently failed to blow the whistle in order to scare said cattle from the track, and recklessly ran the engine and cars over one of said lot of cattle, and by reason of which, and the rotten and unsound condition of the cross-ties at said point, the rails spread, and the spikes were drawn from the rotten ties, and a number of cars were ditched or overturned, and in the said wreck said McGary received fatal injuries."

By the first paragraph of the answer all the material averments of the petition as amended were traversed. By the second paragraph it was averred that the derailment of the cars and the accident to plaintiff's intestate "was caused by a yearling calf coming upon its track immediately in front of its engine, and so near to the same that it was impossible, from the time it so appeared upon the track, for its engineer and trainmen to check the train or stop it and prevent striking the same; that its said engine did strike and run over said calf, and that the body of same went under its engine and cars, and caused the cars to jump the rails and leave the track; that it was impossible from the time the engineer first saw the calf upon the track, or saw that it would come upon the track, by reason of its nearness to him, to stop or check the train or avoid striking it; that the coming of the calf upon the track was not or could not have been foreseen nor expected in time to have avoided striking it, and the consequent derailment of its train; that the running over of the calf and the derailment of the train was unavoidable; that the injury, suffering, and death of plaintiff...