Reliance Coal & Coke Co. v. Louisville & N.R. Co.

• Decision Date: 02 May 1924
• Citation: 203 Ky. 1,261 S.W. 609
• Parties: RELIANCE COAL & COKE CO. v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

261 S.W. 609

203 Ky. 1

RELIANCE COAL & COKE CO. v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

May 2, 1924

Appeal from Circuit Court, Perry County.

Action by the Reliance Coal & Coke Company against the Louisville &amp Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Miller & Craft and J. W. Craft, all of Hazard, for appellant.

Woodward & Warfield, of Louisville, Jesse Morgan, of Hazard, and John Marshall, Jr., of Louisville, for appellee.

THOMAS J.

Appellant and plaintiff below, Reliance Coal & Coke Company, sought by this action to recover of the appellee and defendant below Louisville & Nashville Railroad Company, damages for the alleged negligent killing of a horse owned by plaintiff and which it valued in its petition at $500. The negligence charged in the petition was in the alternative in that it was averred that defendant's agents and servants operating the train wantonly, carelessly, and negligently ran and chased the horse when it was in plain view and but a short distance ahead of the engine without reducing the speed or taking other precautions to prevent injuring him and thereby caused him to fall into a ditch resulting in his death, or that they ran the engine against, over, and on the horse thereby producing his death; but there was no averment that one of the allegations was true but which one the defendant did not know. A demurrer was filed to the petition, but it was not pressed and the court did not pass on it, and, if we should concede (a question not now decided) that the filing of the demurrer was the proper practice to test the incorrect pleading arising from the omitted but required allegation, it was waived by defendant not having the court to act on the demurrer under a well-known rule of practice frequently announced and followed by this court. The answer was a denial, and at the close of the evidence the court sustained defendant's motion for a peremptory instruction in its favor, resulting in a verdict for it, followed by a judgment dismissing the petition, from which plaintiff prosecutes this appeal.

For a reversal it is first argued that, under the provisions of section 809 of our Statutes, a prima facie presumption of negligence on the part of the defendant arises when plaintiff proves by his testimony that the death or injury to the stock was brought about by the acts of defendant's agents and servants without regard to whether there was or was not a collision. But we think the adjudged cases in this court involving actions under the statute are to the effect that no such presumption arises except where the death or injury was produced by a collision with the stock, but the collision may be proved by circumstances, as well as by the testimony of eyewitnesses; and when the proven circumstances are such as to create the reasonable inference that the engine or some of the equipment of the train collided with the stock, or if it is so shown by direct testimony, the burden is then cast upon the defendant to relieve itself from the presumed negligence. Some of the cases from this court so construing the statute are Southern Railway Co. v. Forsythe, 64 S.W. 506 23 Ky. Law Rep. 942, and Pickett v. Lexington & Eastern Ry. Co., 153 Ky. 461, 155 S.W. 1139. The direct point was also before the superior court and so decided in the cases of Kentucky Central Ry. Co. v. Marsh, 7 Ky. Law Rep. 762, and Kentucky Central Railroad Co. v. Threlkheld, 8 Ky. Law Rep. 787. Indeed the express terms of the statute would seem to admit of no other interpretation. It says:

"And the killing or injury of cattle by the engine or cars of any company shall be prima facie evidence of negligence and carelessness on the part of the company, its agents and servants." (Our italics.)

The presumption is indulged to prove negligence and not the fact of injury. There are other means by which stock may be killed or injured by the negligence of a railroad company than by actual collision with them, and for which the company may be made to respond in damages to the owner of the stock. Since, however, the servants in charge of the train are in a better position to know the facts relating to the collision, the Legislature in furtherance of its declared public policy deemed it wise to require an explanation by them, after the plaintiff had shown by his evidence that the death or injury occurred in that manner, and the very language of the statute is so restricted. Cases may be found containing the general statement, in substance, that, after plaintiff shows that defendant produced the death of or injury to the stock, the burden is then cast upon it to disprove negligence, but in each and all of them it will be found that the damage was produced by an actual collision. The first question to be determined, therefore, is whether the proof was sufficient to establish the fact of a collision, either by direct testimony, or by physical circumstances from which it might be inferred.

But two witnesses introduced by plaintiff testified as to the facts relating to the injury, its paymaster, Mr. Bird, and Mrs Ould. The former stated that between 7 and 7:30 p. m. on September 2, 1917, he was ridng the horse from Hazard over a dirt road paralleling the railroad track and at a point where the dirt road was some 12 or 15 feet above the railroad track, when he discovered a train approaching from the rear. The horse became nervous and frightened, so much so that it became evident to the rider that he was about to go over the embankment onto the railroad track, and to avoid participating in the hazard the witness dismounted and the horse leaped or fell over the embankment and witness heard him running apparently in the same direction the train was moving, and he thought that at that time it was something in the neighborhood of 50 yards behind. It was traveling at a moderate speed, not exceeding between 15 and 18 miles per hour, and something like 3 miles beyond that point witness found the horse in what he described as a ditch, but which is shown...