Reynolds' Adm'r v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 09 May 1912
• Citation: 148 Ky. 252,146 S.W. 416
• Parties: REYNOLDS' ADM'R v. CINCINNATI, N. O. & T. P. RY. CO. et al.
• Court: Kentucky Court of Appeals

146 S.W. 416

148 Ky. 252

REYNOLDS' ADM'R v. CINCINNATI, N. O. & T. P. RY. CO. et al.

Court of Appeals of Kentucky.

May 9, 1912

Appeal from Circuit Court, Lincoln County.

Action by B. Reynolds' administrator against the Cincinnati, New Orleans & Texas Pacific Railway Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Emmett Puryer, George Davidson, and Robert Harding, all of Danville and Greene & Van Winkle, of Frankfort, for appellant.

J. W Alcorn and K. S. Alcorn, both of Stanford, and John Galvin of Cincinnati, Ohio, for appellees.

WINN J.

This is the second appeal in this case. The opinion upon the former appeal is to be found in 102 S.W. 888, 31 Ky. Law Rep. 529. The facts upon the first trial are stated there. Upon them this court held that a peremptory instruction should have been given in favor of the railway company. The facts appearing in the testimony upon the second trial differed no little from those detailed in the opinion upon the former appeal.

Upon the second trial, it was made to appear that Reynolds, upon the day of the accident, was in charge of a dead engine located in about the middle of a double-header, south-bound freight train; that when this train reached a water tank in Pulaski county. While the two engines pulling the train were taking water there, Reynolds climbed down from his engine and went forward to talk with those in charge of the pulling engines; that when the train started he endeavored to climb upon it; that he fell in the effort; that his train passed on, leaving him; that he followed it down the track little way and sat down upon the end of a tie on the west side of the track, resting on the west rail of the track. A short time later, a north-bound freight train struck him while in this position, and killed him. In the opinion, supra, it was remarked that his position upon the railroad track was unexplained by the evidence, and that he might have been insane or intoxicated; while plaintiff's proof upon the present trial developed that he was struck or injured in his effort to board his train as it was leaving him. This was apparent from the testimony of eyewitnesses, and from the fact that a wound was found upon the top of his head, with dried blood upon it, immediately after the train which killed him had struck him; and further from the fact that his watch chain was broken and his watch lost when he endeavored to get upon his own train, the watch not being found until after his death, when one of those adjacent, upon seeing the broken chain, went to look for it. It seems clear from the testimony upon the second trial, therefore, that, in an endeavor to get upon his train, he was injured, so that he sat down upon the side of the track, either sickened or unconscious. This is material, however, only to his character and memory, because in the former case it was held that, since he was then in no discharge of any duty to the employer, he was in no other position than that of a trespasser; and he must be so considered here. The former opinion remarked that it made no difference whether he knew what he was doing when he came into and placed himself in this perilous position; which, as well, must be the law of this case.

In addition to the above-noted differences in the testimony upon the two trials, it is to be remarked that the man Singleton whose testimony for the plaintiff on the first trial was made a turning point in, the opinion, was not introduced by him upon the second. A witness, one Andy Patterson, who did testify upon the first trial, testified much more explicitly and very differently upon the second trial. Upon the second trial, he testified that the train which struck and killed the decedent began giving its danger signals at a point at a distance (ascertained by measurement after the first trial) of 1,881 feet from the point where Reynolds was killed. This man was living adjacent to the track, and testified that when he heard the danger signal he took particular note of it, because he thought it might be a warning for some of his stock upon the track, and, as he had had stock killed before, he was anxious about it. Upon the first trial, he had given a much shorter distance as the distance from the fatal point to that at which the alarm signals had first been sounded from the engine; but, in cross-examination upon this variation, at the second trial, he explained that his evidence upon the first trial had been the result of approximation, while that upon...