Nichols' Adm'r v. Louisville & N.R. Co.

• Decision Date: 10 January 1888
• Citation: 6 S.W. 339
• Parties: NICHOLS' ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

6 S.W. 339

NICHOLS' ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

January 10, 1888

Appeal from circuit court, Nelson county.

The administrator of Thomas Nichols brought action against the Louisville & Nashville Railroad Company to recover damages for the death of the deceased, alleged to have been caused by the willful negligence of the defendant's employes. Judgment for defendant. Plaintiff appealed.

Geo. S. Fulton, for appellant.

Wm. Johnson, for appellee.

PRYOR, C.J.

The appellant's intestate was run over and killed by a freight train of the appellee, and it is claimed that it was caused by the willful negligence of the employes on the train. The intestate was a deaf mute, and walking on appellee's road, about 400 yards from Samuel's depot, with his back to the approaching train. The regular signal of blowing the whistle and ringing the bell was made as the train approached the depot, and one having the sense of hearing could and must have known that a train was approaching. It was moving at the rate of 12 or 14 miles an hour, and another person, being on the road between the depot and where the unfortunate man was killed, stepped off the track as the train approached, but the deceased paid no attention to it whatever. The engineer as he neared the man called to him to leave the track, and blew the whistle for down brakes, but the car was then so near as to render it impossible to check its progress so as to save the life of the deceased.

That the engineer doubtless saw him, or could have seen him, in time to stop the train, is manifest, but the deceased was on the track of the road where there was no crossing, and where he had no right to be, with the ground level on each side of the track, so that he might have stepped off without the least trouble, and under such circumstances the engineer had the right to presume that he would abandon the track of the road for his own security. Any man with his senses about him would have left the track; in fact, there was the highest degree of neglect on the part of the deaf mute in going upon the railroad track where trains were constantly passing, and using it as a foot-path for his own convenience. His death was the result of his own folly, and the court below acted properly in giving the peremptory instruction. Judgment affirmed.