Pittsburg, C., C. & St. L. Ry. Co. v. Blum

• Decision Date: 24 February 1910
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. et al. v. BLUM.
• Court: Kentucky Court of Appeals

125 S.W. 300

PITTSBURG, C., C. & ST. L. RY. CO. et al. v. BLUM.

Court of Appeals of Kentucky.

February 24, 1910

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Third Division.

"Not to be officially reported."

Action by Joseph Blum against the Pittsburg, Cincinnati, Chicago &amp St. Louis Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Charles H. Gibson, for appellants.

Bennett H. Young and E. C. Waide, for appellee.

CARROLL J.

Robert Blum, an infant son of the appellee, Joseph Blum, was run upon by one of the appellant company's cars at Fourteenth and Rowan streets, in Louisville, and as a result his leg had to be amputated. This action was brought by his father to recover damages for the loss of his services. The jury trying the case assessed the damages at $1,800. The errors complained of are (1) that the verdict is flagrantly against the weight of the evidence; (2) that the damages awarded are excessive; and (3) that the court erred in refusing an instruction offered by the appellant company.

Fourteenth street, where it intersects Rowan street, is occupied by three railroad tracks; one of them being used by the appellant company. On the day of the accident, Robert Blum who was then about 10 years of age, in company with an older brother and another boy, was walking east on the south side of Rowan street, and when they came to Fourteenth street they found two freight cars of the appellant company standing on its track. These two cars were detached from any other cars and had been placed there some 10 minutes before by a switch engine of the appellant company. The north car was altogether on the intersection of the two streets, and the south car was partly on the intersection and partly south of the south curb line of Rowan street. Just how far the south end of the car projected south of the curb line is not clear. At the time the boys came up to the west side of Fourteenth street, the crossing watchman was on the east side of Fourteenth street, and he testifies that he warned the boys both by waving his flag and hallowing at them not to attempt to cross Fourteenth street behind the south end of the two cars. His statement that he warned them is corroborated by three other witnesses; and, in addition, another witness testifies that he hallooed to them not to cross. The boys say that they did not hear or receive any warning not to cross, but that, on the contrary, a trainman who was flagging an engine told them to go around the car if they were in a hurry and wanted to cross. Robert Blum started across the track ahead of the other two boys, and just as he got on the track behind the two cars they were struck by other cars and caused to run south on Fourteenth street from 15 to 36 feet. It was this movement of the cars that caught Robert Blum, and caused the injury sustained by him. There was no brakeman or other person on these two cars. They were struck by a cut of five cars in charge of a brakeman that had been detached from the engine some distance north of Rowan street and kicked back for the purpose of coupling to the two cars standing at the intersection. When the two cars were struck by the five detached cars, they failed to make a coupling, and the two cars were knocked as some of the witnesses say 15 feet, others 20 feet, and yet others 36 feet. It will thus be observed that the railway company left two freight cars without any person in charge of them standing on the intersection of Rowan street with Fourteenth street, and that while these two cars were thus standing they were struck by five other cars detached from the engine and set in motion by a process known in railroad circles as "kicking." It was intended when the five cars were kicked against the two that they should couple on to them, but for some reason the coupling was not made, and, when the five cars struck the two, it kicked them the distance mentioned.

It will scarcely be questioned that this method of moving the cars at this place was negligence, unless the traveling public was protected from danger by a flagman or other railroad employé located in such a position as that he might give timely and reasonably sufficient warning of the movement of the cars; so that the real issue in the case upon this point comes down to a question of fact. When the boys saw these two cars standing...