Reynolds' Adm'r v. Black Mountain Corp.

• Decision Date: 23 October 1931
• Citation: 240 Ky. 673,42 S.W.2d 916
• Parties: REYNOLDS' ADM'R v. BLACK MOUNTAIN CORPORATION.
• Court: Kentucky Court of Appeals

42 S.W.2d 916

240 Ky. 673

REYNOLDS' ADM'R v. BLACK MOUNTAIN CORPORATION.

Court of Appeals of Kentucky

October 23, 1931

Appeal from Circuit Court, Harlan County.

Action by Walter Reynolds' administrator against the Louisville & Nashville Railroad Company and the Black Mountain Corporation. From a judgment entered on directed verdict for the Black Mountain Corporation, plaintiff appeals.

Affirmed.

Pope &amp Huff, of Harlan, and Jas. M. Gilbert, of Frankfort, for appellant.

Cleon K. Calvert, of Pineville, J. G. Bruce, of Pineville, and B M. Lee, of Harlan, for appellee.

DRURY C.

In the case of Louisville & N. R. Co. v. Reynolds' Adm'r, 240 Ky. 662, 42 S.W.2d 911, this day decided the court directed a verdict in favor of the Black Mountain Corporation, and, from the judgment entered thereon, the administrator of Reynolds has appealed, and upon his motion he has been allowed to prosecute this appeal upon that record. The administrator had sued both corporations, and in his petition had alleged:

"And on Nov. 3, 1929, and for some time prior thereto, it (The Black Mountain Corporation) owned and operated a large coal-mine at Kenvir, and had constructed a number of camp houses at Kenvir, in which its employees lived, who worked at its said coal mine, and through which village its co-defendant railroad was operating its said trains in transporting coal from said mine of its co-defendant, Black Mountain Corporation.

He states that said Black Mountain Corporation had also constructed a number of business houses which it was maintaining in the operation of its said mines, including a restaurant, and barber shop, and employed men to operate said business houses. He states that there was on said date a public road-crossing or street that extended across said railroad track of the Louisville & Nashville Railroad Company in the town of Kenvir and about 75 feet distant from said barber-shop and restaurant of the Black Mountain Corporation and which crossing the people, including the deceased, Walter Reynolds, was accustomed to use when not obstructed and blockaded by the trains and cars of this defendant railroad company.

He states that when said crossing was blockaded by said cars and trains of the said railroad company, it was the general practice and custom of all the people living in said town or village of Kenvir to cross over said railroad track between the cars or under the cars while said railroad crossing was blockaded, and such use of said track was so general and by such a great number of people and was so well known to the employees of the said railroad company, and said railroad had acquiesced in such public use of its tracks in said town, as that said railroad track had become converted into a public passway, especially when it had the grade crossing, blockaded as aforesaid; and that it was the duty and general custom of the employees of said railroad company in operating its trains thru said town and over said crossing and especially when it had obstructed said grade crossing, to keep a constant look-out for men, women and children who might be passing from one side of said town across said railroad tracks to the opposite side, and to give timely warning and signals by ringing the bell on its engine or sounding the whistle before starting its train or trip of cars over said crossing and thru said village, which village was situated only a few feet from the tip-house of the defendant, Black Mountain Corporation, where said railroad cars were loaded with coal and moved over the said tracks.

He states that on Nov. 3, 1929, said railroad company had blockaded and obstructed said grade crossing for at least 16 consecutive hours, and that during all of said time, men, women and children were constantly passing over said tracks and between or beneath said railroad cars which blockaded said crossing, and that said facts were well known to the employees in charge of the engine and train of the defendant railroad company.

He states that his decedent, Walter Reynolds, was an infant, only 11 years of age, and that on the 3rd day of Nov. 1929, this defendant, Black Mountain Corporation, without the consent or knowledge of the plaintiff, who is the father of said Walter Reynolds, in the operation of its said restaurant, sent, directed and caused said infant, Walter Reynolds, to go from said restaurant to the home of R. H. Ladd to get the keys to said restaurant that it might be operated on said day, and that it was negligent and careless in so doing; and that while said Walter Reynolds was returning from said mission with said keys with which the defendant, Black Mountain Corporation, might unlock the door of said restaurant on said day, and while passing either between two coal cars or underneath one of said cars standing on said tracks and across said grade-crossing, the agents, servants and employees of this defendant railroad company of this gross negligence and carelessness and without keeping any look-out or giving any signal or warning, suddenly started said train, engine and trip of cars and caught said Walter Reynolds under the wheels of said train and thereby crushed him to death.

Plaintiff states that owing to the youth and indiscretion of said Walter Reynolds, the defendant, Black Mountain Corp., was negligent and careless in sending said infant on said perilous...