Nashville, C. & St. L. Ry. Co. v. Lowery's Adm'r

• Decision Date: 29 May 1912
• Citation: 147 S.W. 19,148 Ky. 599
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. LOWERY'S ADM'R.
• Court: Kentucky Court of Appeals

147 S.W. 19

148 Ky. 599

NASHVILLE, C. & ST. L. RY. CO. v. LOWERY'S ADM'R.

Court of Appeals of Kentucky.

May 29, 1912

Appeal from Circuit Court, Calloway County.

Action by J. E. Lowery's administrator against the Nashville Chattanooga & St. Louis Railway Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded, with directions for new trial.

Coleman & Wells, of Murray, and Wheeler & Hughes, of Paducah, for appellant.

E. P Phillips, of Murray, and Z. A. Stewart, of Harlan, for appellee.

CLAY C.

J. E Lowery was shot and killed by Homer Bridges, a passenger on one of the trains of the Nashville, Chattanooga & St. Louis Railway Company. His administrator brought this action to recover damages for his death. A trial resulted in a verdict and judgment in favor of the plaintiff for $2,000. The railroad company appeals.

Lowery's death occurred under the following circumstances: On December 25, 1909, appellant's north-bound passenger train No. 61 was proceeding from Memphis to Paducah. The train reached Paris, Tenn., shortly after 11 o'clock a. m. At that point Homer Bridges and several other negroes boarded the train. When the train reached a point a few feet beyond the incorporated limits of Hazel, a town of about 800 inhabitants located in Kentucky near the Tennessee line, Lowery was walking along a pathway on the east side of the track and was proceeding in the same direction as the train. Bridges, who was seated on the east side of the train saw Lowery walking beside the track and made to those seated near him the following remark: "I see old Pap down the road; watch me make him jump up when I get to him." Thereupon he laid his hat on the seat, took his pistol out of his pocket, and, putting his arm out the window, fired the pistol, striking Lowery in the back, and inflicting a mortal wound, from which he died about six weeks later.

As to Bridges' previous conduct while on the train, the evidence is as follows: Oney Kinley, colored, testifies that Bridges got on the train at Paris, Tenn. He appeared to be drinking, but was not drunk. Bridges fired one shot from the train at Hilltop, Tenn. When he fired the shot, he put the pistol out the window and said that it was Christmas day and he was going to celebrate. When he fired this shot, Bridges was on the west side. Bridges frequently moved from one side of the train to the other. All the passengers in the coach seemed to be talking, and Bridges was no noisier than the rest of them.

John Craven testifies that he got on the train at Puryear. Between Puryear and Hazel, Bridges was whooping and "hollering" and cutting up and flourishing his pistol backwards and forwards all over the coach. Bridges appeared to be under the influence of whisky, and his conduct was such that witness regarded him as dangerous. Between Puryear and Hazel, Juny Granberry, the porter, spoke to Bridges and told him he had better keep that thing (meaning the pistol) in his pocket; that it was liable to get him into trouble. At the time Granberry spoke to Bridges, Bridges had his pistol out in his hand. After this occurrence, Granberry, the porter, had sufficient time to hunt up the conductor of the train and speak to him before the train stopped at the Hazel depot. There were several others drinking and cutting up on the train. When the conductor passed through, they were cutting up and whooping and "hollering," some of them cursing and drinking. The aisle was full, and none of the negroes took their seats between Puryear and Hazel, although there were plenty of seats in the coach for them all. Some of them had their money out, and some of them had dice in their hands and proposed to shoot craps. The conductor had to crowd through them to take up the tickets. When the conductor passed through, he did not tell them to sit down or keep quiet. When the train reached the depot at Hazel, Bridges had his head out the window "hollering" at people on the platform.

Ernest Olive testifies that he got on the train at Puryear, Tenn., and got off at Hazel, Ky. Saw Homer Bridges on the train. Bridges was cutting up. Appeared to be drunk. Was talking loud and "hollering" and walking up and down the aisle. The porter told him he had better put his pistol up and sit down or he would get into trouble. The porter's name was Juny Granberry. Several of the negroes were quarreling and fussing and came near getting up a fight. Bridges and the rest of the boys kept up the fuss all the way from Puryear to Hazel. When Hazel was reached, Bridges stuck his head out the window and "hollered" to those who were leaving the train. Granberry, the porter, had plenty of time, after he spoke to Bridges about putting his pistol up, to hunt up the conductor and inform him of the conduct of Bridges.

The evidence for appellee further shows that Lowery was killed at a point about 1,600 feet north of the Hazel depot and 131 feet north of the corporate limits of Hazel. The town of Hazel extends still further north of this place about 1,300 feet. The footpath along the railroad had been used daily for 12 or 15 years by the public in general and by school children in going to and from school.

The evidence for appellant is as follows: M. C. Galloway, the conductor in charge of the train, testifies that he passed through the train four times between Paris and Hazel. The passengers in the colored compartment were not guilty of any rowdyism when he went through. They were just talking among themselves, and there was no extra noise going on. When he passed through the coach, no one had a pistol out, and he received no information of any one having a pistol out between Paris and Hazel. He did not know of any firing of a pistol from the train between Paris and Hazel. Heard some pistol shots at stations and between stations, but not from train. Had no information that Homer Bridges was boisterously drunk. When he got on the train, he was not drunk, but had been drinking. After leaving Puryear, passed through the full length of the train. To go through the colored compartment occupied about 30 seconds. It is the duty of the porter to report to the conductor any misconduct that occurs on the train. On leaving a station, it is the duty of the porter to go into the baggage and express car and assist the agent to stack the express and baggage. Did not know whether the porter was so occupied after leaving Puryear. Did not know what he was doing. There was nothing to prevent witness from expelling Bridges from the train at Hazel had he received information between Puryear and Hazel that Bridges was acting in a boisterous and dangerous manner.

Gaston Poole, the official stenographer who reported the evidence on the trial of Homer Bridges for murder, was introduced and read his notes showing that John Craven on that trial testified that, before he got to Hazel, Homer Bridges was laughing and talking and going on, but that he never saw Bridges with any weapon.

Juny Granberry, the porter, testifies that he was in the colored compartment a part of the time between Paris and Hazel. Never saw any disorder on the train, and did not see anybody with a pistol. Saw Bridges when he got on the train, and his conduct was not different from that of others in the colored compartment. Never told Bridges between Puryear and Hazel that he had better keep that thing in his pocket; that it was liable to get him into trouble. Just after leaving Hazel, witness thought he heard a gun shot in the colored car. He then went into the car and asked who that was shooting. No one replied. He then said, "Whoever that is better put that pistol up." Before that time, he had not heard any pistol shot or seen any one with a pistol. On cross-examination he stated that he did not hear a shot at Hilltop. Had he gone into the car immediately after he had left Puryear and seen Homer Bridges in a drunken, disorderly, and riotous condition, and seen him waving a pistol about, he would have had time to communicate that fact to the conductor before the train left Hazel. Or, if he had discovered such condition at any time between Puryear and Hazel, he could have told the conductor while the train was standing at the depot at Hazel.

Ada Wells testifies that she got on the train at Paris...