Ohio Val. Ry. Co. v. Watson's Adm'r

• Decision Date: 31 January 1893
• Parties: OHIO VAL. RY. CO. v. WATSON'S ADM'R.
• Court: Kentucky Court of Appeals

21 S.W. 244

93 Ky. 654

OHIO VAL. RY. CO. v. WATSON'S ADM'R.

Court of Appeals of Kentucky.

January 31, 1893

Appeal from circuit court, Henderson county.

To be officially reported.

Action by James A. Watson's administrator against the Ohio Valley Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

J. F Clay, Henry Hughes, and Yeaman & Lockett, for appellant.

John Young Brown and Edward W. Hines, for appellee.

PRYOR J.

In March of the year 1890 the plaintiff's intestate, James A. Watson, wanted passage on a special freight train belonging to the Ohio Valley Railway Company from the town of Morganfield to Corydon, Ky. Those in charge of the train refused first to let him travel upon it, but, being informed by him that his father was dying, and that he was anxious to be with him before his death, the superintendent of the road at that point consented he should go, and, upon his paying the regular passenger fare, he started on his journey. Before reaching Corydon, the caboose in which he was riding left the track, was dragged several hundred feet over the cross-ties and finally thrown off the track upon Watson, killing him instantly. This action was instituted by his personal representative, alleging that Watson lost his life by the gross and willful neglect of the company. There are no particular acts of negligence alleged in the petition, but an answer filed, denying any neglect, and averring that the car was thrown from the track by inevitable casualty, and without fault on the part of the defendant; and, further, when the intestate saw the danger, he negligently leaped, or attempted to leap, from the car, when the circumstances transpiring were not such as to impress an ordinarily prudent man with the necessity of attempting to leave the car, and that his own neglect lost him his life. A reply was filed negativing the averments of the answer, and the cause heard by a jury that returned a verdict for $6,250 in damages.

On the trial of the cause the railroad company claimed the burden of proof, and was adjudged entitled to open and close the argument, to which the plaintiff excepted, but, as a recovery was had, the question raised below is not here for decision. The railroad company, having claimed the burden, proceeded with its testimony in relation to the condition of the railway track at the place where the accident occurred, and a number of witnesses familiar with the track and its condition testified that the cross-ties were sound, and the road in excellent repair. Engineers, road master, as well as others not connected with the road, spoke of the road as being in excellent repair, both at and near the place where the derailment took place. Also that the cars were moving at the ordinary rate of speed for a freight train when the accident happened. The defective condition of the railway track and its ties, and the great speed of the train, seem, from the testimony to have constituted the neglect causing the death of Watson, and the testimony was confined to those acts of negligence. When the defense closed the case, by plaintiff's testimony showed (and that by a number of witnesses) the bad condition of the track, the decayed appearance of the cross-ties, and its apparent unsafe condition. This unsafe or defective condition was not only made to appear at the place of the accident, but for several hundred feet on each side of it, beginning at the point where the derailing first occurred. It was objected below, and made...