Sights v. Louisville & N.R. Co.

• Decision Date: 27 January 1904
• Parties: SIGHTS v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

78 S.W. 172

117 Ky. 436

SIGHTS v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

January 27, 1904

Appeal from Circuit Court, Henderson County.

"To be officially reported."

Action by A. B. Sights against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Clay &amp Clay, for appellant.

Yeaman & Yeaman, and B. D. Warfield, for appellee.

BURNAM C.J.

The appellant, A. B. Sights, brought this suit against the appellee for damages for a broken leg, which he alleges was occasioned by his horses taking fright and throwing him out of his buggy in consequence of the negligence of appellee's servants in charge of one of its trains in the city of Henderson. Appellee filed a general demurrer to plaintiff's petition, which was overruled. It thereupon filed an answer, which was a traverse and a plea of contributory negligence. The trial court gave the jury a peremptory instruction to find for the defendant at the conclusion of plaintiff's evidence, and he has appealed.

The alleged acts of negligence on the part of the defendant consisted in driving its engine across one of the most frequented streets of the city of Henderson without giving any signals of its approach, and in the failure of their flagman, who was stationed at the crossing in conformity with one of the ordinances of the city of Henderson, to give the warning of the approach of the engine until too late to avoid the injury; third, in causing the engine to emit violent and unusual noises when close to and in front of plaintiff's horses. The testimony of appellant, which was corroborated by that of Mr. Johnson, who was driving with him, was to the effect that the railway company had maintained at their crossing of Second street in the city of Henderson, in conformity with the requirement of a city ordinance, a flagman, whose duty required, when trains were approaching the street, that he should stand in the middle thereof, and give notice of their approach to travelers by waving his flag; that a small house had been erected between the tracks of the Louisville & Nashville Railroad Company and those of the Illinois Central Railroad Company for his accommodation and when the way was unobstructed he usually retired to his house; that on the date of the accident appellant was riding in a buggy pulled by two horses, which were being driven by Mr. Johnson, along Second street in the direction of the railroad crossing; that when they arrived at within 200 yards of the crossing they discovered an engine backing a train across the street south, and they stopped their horses, and remained standing until the engine train had disappeared behind a train of box cars which were standing upon the track; that after the train passed out of view, not seeing the flagman in the street, they concluded that it was safe to approach, and drove their...