Louisville & A.R. Co. v. Cox's Adm'r
| Decision Date | 29 October 1907 |
| Citation | 104 S.W. 956 |
| Parties | LOUISVILLE & A. R. CO. v. COX'S ADM'R. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Estill County.
"Not to be officially reported."
Action by Willard Cox's administrator against the Louisville & Atlantic Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, for a new trial.
Alfred H. Nuckols, Wallace & Harris, and Riddell & Friend, for appellant.
Grant E. Lilly, for appellee.
Willard Cox, who was employed as a brakeman by the appellant company sustained injuries in its yards at Beattyville, Ky. from which he died a short time afterwards. His administrator brought this action to recover damages, and averred that the appliances on the car by which his intestate was killed were not in good repair, that its track at the place of the injury was unsafe and defective, that the engineer, conductor, and other members of the crew were incompetent, and negligently and carelessly managed the train by which Cox was killed. In addition to traversing the petition, appellant interposed the plea of contributory negligence. Upon the trial, appellee recovered judgment for $2,500, to reverse which this appeal is prosecuted.
Excepting deceased, there was only one eyewitness to the accident, and her testimony as to how it happened is vague and unsatisfactory. At the time it occurred the crew with which Cox worked was engaged, about 5 o'clock in the morning in May, 1905, in transferring a car from the main track to what was known as the "house track." Other cars were standing on the house track, and it was necessary to move them with and by the car that was put into it by the switching crew; and, while the engine was pushing the car attached to it on the house track, Cox fell under the wheels and sustained the injuries that resulted in his death. At the time of the accident the train was moving about two or three miles an hour. It had been raining that night, or the day previous, and the ground was slippery and wet; and there is evidence that dirt and sediment that washed from a culvert had been allowed to accumulate on top of the material between the rails, and that in places the cinders and dirt were almost even with the top of the rails. Several witnesses however, testified that this did not render the track or premises unsafe, and that they were in good condition and free from defects; and a decided preponderance of the evidence tends to support this theory. Unless the mere fact that cinders, dirt, and other material that was allowed to accumulate until it covered the ties, and the skim of sediment from the culvert, rendered the place unsafe, there is no evidence that it was not in proper and safe condition; but we do not deem it necessary to further elaborate this point, as we are of the opinion that the condition of the track and premises was not the cause of the accident.
Why Cox happened to go or be on the track in front of the moving car does not satisfactorily appear, although it is probable that he was there for...
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