McGhee v. White

• Decision Date: 04 March 1895
• Docket Number: 230.
• Citation: 66 F. 502
• Parties: McGHEE et al. v. WHITE.
• Court: U.S. Court of Appeals — Sixth Circuit

66 F. 502

McGHEE et al. v. WHITE.

No. 230.

United States Court of Appeals, Sixth Circuit.

March 4, 1895

Plaintiffs in error were receivers of the East Tennessee, Virginia &amp Georgia Railway Company, and as such operated the Louisville Southern Railroad under a lease from the Louisville Southern Railroad Company to the East Tennessee, Virginia & Georgia Railway Company. While the road was being operated by the receivers, Green Kennedy, the intestate of the defendant in error, was killed by one of their trains in Lawrenceburg, Ky. The accident occurred at the point where the railway is crossed by the main road from Lawrenceburg to Frankfort which runs from north to south. The railway track crosses the road diagonally from southeast to northwest within the corporate limits of Lawrenceburg, but outside of the more densely settled portion of the town. For a quarter of a mile south of this crossing there are no houses on either side of the turnpike except that of Mrs. Caldwell, which stands about 40 yards south of the crossing, and 20 feet east of the pike and has the railroad at its rear as well as on its north side. Three hundred yards before reaching the crossing the railroad makes a curve in a cut. Whether a train running in this cut is hidden from a traveler on the pike was in dispute. The pike before it reaches the crossing is below the level of the railway, and reaches the railway on a grade. From a point upon the turnpike 20 feet south of the crossing the railway track can be seen about 40 yards eastwardly from the crossing. The track west of the crossing is straight and level and in open ground for half to three-quarters of a mile. On the 26th of August, 1892, Green Kennedy, seated in a wagon, was driving a horse and mule northwardly on the turnpike road just described towards the railroad crossing. Holly Meux, a colored boy, was sitting on the seat with Kennedy. As they approached the railway, a work train crossed. Kennedy stopped the wagon in front of Mrs. Caldwell's house, 40 yards from the track, and, as the work train passed, went on slowly towards the crossing. The mule and the horse were upon the track when a second train, a freight train following the work train, struck the mule, killed Kennedy instantly, and injured the boy Meux. Suit was brought in the circuit court of Anderson county, Ky., to recover damages, and it was removed by defendants to the court below, where a verdict was rendered in favor of the plaintiff for $4,500. Upon motion for new trial the court made an order granting the same, unless a remittitur was entered of $2,000. This was done, and judgment was rendered for the $2,500. Holly Meux, who was on the wagon with Kennedy, testified: 'Just before we reached Mrs. Caldwell's house the work train passed over the crossing, and we slackened up, and stopped in front of Mrs. Caldwell's house. As soon as the train passed by, we drove up slowly to the crossing. I was looking at the train which had just passed, and it was going around the hill, as we approached the railroad crossing, and just before the mule on the right hand side was stepping on the track, I turned my head, and saw the train coming from the other side of the track, and hallooed to Green Kennedy to look out, and I was just about to jump out when the train struck the mule and wagon, and knocked me out on the ground near the fence. ' Henry Anderson testified for the plaintiff: 'While I was looking in that direction I saw Green Kennedy and his team approaching the crossing from the south side, and it seemed to me that it was not more than a minute or two after the train passed, and before it got out of sight, until the second train appeared on the crossing and struck the team. I heard no whistle nor ringing of the bell on this last train. I am positive the whistle was not blown, and I did not see it at all until just about the time it struck the team. I immediately got up and walked down to the crossing, and when I got there I found that Green Kennedy was killed. ' Lula Kingston, who was approaching the crossing from the other side, from the north, and did not quite reach it before the second train passed, said: 'I did not see at that time Green Kennedy nor his wagon and team near the railroad crossing, but after the train had passed I came back and saw where the wagon had been struck and a man was killed. ' Another witness, Mattie Sewell, testified that she was looking out of her window, through which she could see to the middle of the pike where the railway crossed it; that she followed the first train with her eye until a shadow came across in front of her, and she turned her head, and saw another train, which struck the wagon Green Kennedy was in. Claude Anderson, who was sitting on the fence just south of the crossing, said that he turned his head to look at the work train, and did not see the other train as it approached the crossing until just before it struck the wagon. 'After Green Kennedy started in the direction of the railroad after the work train had passed, I did not notice him until just before the second train struck him. I do not know which way he was looking as he approached the crossing, as I was looking in the other direction, at the work train. ' For the defendant, Bertha Caldwell testified: 'I heard the noise of the train and the bell ringing, and saw the train as it came around the curve. I looked to the pike, and saw a colored man driving a wagon with a horse and mule in it about twenty feet from the railroad track. I said to my mother, 'That man is driving his team onto the track; why don't he stop?' I saw him look around at the train as it was...