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

• Decision Date: 19 February 1887
• Parties: SHELBY'S ADM'R v. CINCINNATI, N. O. & T. P. RY. CO.
• Court: Kentucky Court of Appeals

3 S.W. 157

85 Ky. 224

SHELBY'S ADM'R v. CINCINNATI, N. O. & T. P. RY. CO.

Court of Appeals of Kentucky.

February 19, 1887

Appeal from circuit court, Boyle county.

Robt. Harding, J. B. McFerran, and Van Winkle & Rodes, for appellant.

Breckinridge & Shelby, for appellee.

LEWIS J.

This is an action by appellant to recover for the destruction of the life of his intestate, George Shelby, a boy about nine years of age, by the alleged willful negligence of the servants and agents of the appellee; and the question before us is whether the lower court erred in giving, at the conclusion of the plaintiff's evidence, a peremptory instruction to find for the defendant. The intestate was killed by being run over by a box car on a side track of appellee's railroad at Junction City, Boyle county, where the Louisville & Knoxville road, running east and west, crossed it. It appears that on the occasion those in charge of a freight train standing on the main track of appellee's road were endeavoring to detach the box car in question, which was next to the engine for the purpose of placing it on the side track near the depot, and with that view it was drawn along the main track to the intersection, and thence pushed upon the side track. But, instead of keeping it attached to the engine until it reached the place where it was the purpose to leave it, the engine, after being made to give it an impetus, was cut loose at a point about 75 yards from where the intestate was standing, and carried back in the opposite direction towards the main track, while the box car was permitted to move without the control of any one, along the side track, that was down grade, at the rate of from five to eight miles an hour, going a distance of 200 yards after running over the intestate before it stopped. No signal or warning was given of the approach of the car to where the intestate was killed nor does it appear that any servant of appellee was in a position to see or warn him, or any one else who might have been on the side track in front of the moving car, which the evidence shows did not itself make enough noise to attract attention.

It appears that Junction City contains a population of about 400, and about 20 families reside south of the Louisville &amp Knoxville road, who have been accustomed to pass along the side track of appellee's road going to the part of the town north of the other road. It further appears that, a few hours before his death, the intestate had been employed by the owner to water hogs in a box car of another freight train, and his purpose in going where he was when killed was to solicit employment by the same person in watering cattle in a car of the train from which the box car in question was...