Shackleford's Adm'r v. Louisville & N. R. R. Co.

• Decision Date: 08 April 1886
• Citation: 7 Ky.L.Rptr. 761,7 Ky.L.Rptr. 729,84 Ky. 43
• Parties: SHACKELFORD'S ADM'R v. L. & N. R. R. CO.
• Court: Kentucky Court of Appeals

84 Ky. 43

7 Ky.L.Rptr. 729, 7 Ky.L.Rptr. 761

SHACKELFORD'S ADM'R v. L. & N. R. R. CO.

Court of Appeals of Kentucky.

April 8, 1886

Appeal from Larue Circuit Court.

J. W Twyman and D. H. Smith for appellant.

Wm Lindsay for appellee.

OPINION

Holt Judge.

In this action by the administrator of Elizabeth Shackelford against the appellee, the Louisville & Nashville R. R. Co., to recover damages for the killing of the intestate by being run over by one of its trains through the alleged willful neglect of those in charge of it, the lower court, at the close of the appellant's testimony, peremptorily instructed the jury to find for the appellee.

This was improper if the evidence tended in any degree to support a right of recovery. If, however, there was an entire absence of negligence upon the part of the appellee, then the court's action can not be disturbed.

It appears from the evidence that the deceased was not in the employ of the company, but was living at a section house belonging to it, doing general housework for the occupant who was a section boss of the appellee, and that she had been so engaged for about a month. The house was situated fourteen and a half feet from the track of the railroad, with a porch extending from it still nearer and quite close to the track. Just south of the porch, and obstructing to some extent the view from it southward along the railroad, were a well house and a small workhouse. In the same direction, and 200 yards from the section house at a curve in the railroad, is a crossing which was used by the neighbors in going to church and in hauling freight to be loaded into empty cars, which were sometimes left upon a switch, which was near the section house. The passway was not, however, a public one, and the owner of the land was threatening to sue those passing over it for trespass. Still further south, and about a mile from this crossing, was a county road. A short distance north of the section house was a bridge over Rolling Fork river; while across the track from the house were some outbuildings belonging to it, and the milk yard. There was no town or station at this point upon the road. The testimony shows that sometimes the trains would give a signal when nearing the section house, while at other times they would not do so.

At about 7 o'clock on the morning of October 7, 1883, the deceased came out of the kitchen door of the section house on to the porch, wearing a sun bonnet, and carrying a bucket in each hand. When she did so the engine of the appellee's train--which was not a regular, but a " wild" one and transporting a circus--was but twenty or twenty-five steps from her, and running at...