McDermott v. Kentucky Cent. Ry. Co.

• Decision Date: 22 October 1892
• Parties: McDermott v. Kentucky Cent. Ry. Co.
• Court: Kentucky Court of Appeals

20 S.W. 380

93 Ky. 408

McDermott v. Kentucky Cent. Ry. Co.

Court of Appeals of Kentucky.

October 22, 1892

Appeal from court of common pleas, Bourbon county.

"To be officially reported."

Action by John P. McDermott, an infant, by his father, against the Kentucky Central Railway Company, for a personal injury. The court directed a verdict for defendant, and plaintiff appeals. Affirmed.

Lewis J.

Appellant an infant, suing by his father, brought this action to recover for an injury to his foot, resulting in amputation just above the ankle, caused by one of appellee's locomotives running on it. But the lower court having, at conclusion of plaintiff's evidence, instructed the jury to find for defendant, which was done, the single question presented on this appeal is whether there was evidence conducing to show legal liability for the injury complained of. It appears that the railroad track upon which appellant then about eight years of age, got hurt, was one owned by appellee, leading from Paris, where it occurred, to Maysville, there being three other tracks near the depot. Of these the most western, the Kentucky Central, leads to Covington and between it and Maysville track is a switch track to a turntable, and another switch track to some place not made clear by the evidence. The father of appellant resides and keeps a boarding house and saloon where the Winchester turnpike crosses the Kentucky Central Railroad, about 400 feet from the depot, towards Lexington; and had directed an elder son to go to the depot for the purpose of meeting his mother, who was expected to come that afternoon on the Kentucky Central from Covington. Appellant, though not required, nor having permission, accompanied his brother, as did also their little sister. But the train not arriving on time, the eldest boy, for some private purpose not connected with business of the company, proceeded from the depot to appellee's blacksmith shop, which had to be reached by going along on or beside the railroad tracks; and appellant went to the oil house west of the Covington track, their sister returning home. After remaining at the oil house a short time, appellant started to follow his brother, going across the Covington and two intermediate tracks; but whether it was necessary for him in order to reach the shop to also cross or go upon the Maysville track does not clearly appear from the evidence. The engine, No. 10, which did the injury had that afternoon pulled the Maysville train to Paris, and was, with tender attached, when appellant left the oil house upon the turntable, and before it left there he had crossed the three tracks, and probably reached the Maysville track. After going from the turntable track to the Maysville track, engine No. 10 was backed on the latter towards cars it was designed to be hitched to, and at a short distance from intersection of the two tracks the tender struck appellant, who, as he testifies, had stopped on the track to pick a cinder from his foot, his face being turned away from the backing engine. The evidence shows that no warning by bell or whistle was given of the retrograde movement of the engine; nor was there any person on it at the time except an employe, termed "hostler," whose business, it seems, is to do the necessary switching of engines and cars about the company's yard. But it was developed by the evidence offered for plaintiff that the place to which he was going, as well as the one he was at when hurt, is within the company's yard, to which he had no right...