Sims' Admr. v. Ches. & Ohio R. R. Co.

• Decision Date: 12 October 1910
• Citation: 140 Ky. 241
• Parties: Sim's Admr v. Chesapeake & Ohio Railroad Co.
• Court: Kentucky Court of Appeals

140 Ky. 241

Sim's Admr v. Chesapeake & Ohio Railroad Co.

Court of Appeals of Kentucky.

Decided October 12, 1910.

Appeal from Greenup Circuit Court.

SCOTT & HAMILTON and S. S. WILLIS for appellant.

WORTHINGTON, COCHRAN & BROWNING for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

Oscar Sims lived with his father about a mile and a quarter south of Ashland and near the line of the Chesapeake & Ohio railway. Not far from his father's house a public road crossed the railroad. On August 29, 1908, Sims was in Ashland after night, and visited a young lady. After leaving her house he started home. When he passed the station, a policeman who was there saw that he was intoxicated and advised him not to go through the tunnel. He thanked the policeman for his advice and went on. A lady who lived not for from the road crossing heard him holler in front of her house. She was in bed and did not get up, but recognized his voice as she knew the young man well. From her house to his father's the direct way was to follow the county road across the railroad. A passenger train going east came along in about half an hour, and after the train passed, his dead body was found about thirty-five feet east of the railroad crossing. The body was so mangled as to be almost past recognition, and that he was killed by the train there is no question. This suit was brought by his personal representative to recover for his death. At the conclusion of the evidence for the plaintiff, the defendant moved the court to instruct the jury peremptorily to find for it. The motion was overruled, and the defendant then introduced its evidence. At the conclusion of all the evidence the defendant renewed its motion for a peremptory instruction, which the court gave. The jury having found for the defendant and the court having entered judgment upon the verdict, the plaintiff appeals.

The father of the young man testified that he went to the crossing the next morning; that the cinders were scuffed up as if something had been dragged over them from the road. Other witnesses testified to seeing the sign of a body being dragged in the cinders from the second or third tie beyond the end of the plank nailed on the ties for the crossing, and to seeing the blood and hair and scraps of his clothes on the ties west of the cattle guard, which was eight feet from the crossing. The plaintiff also proved by several witnesses that the train gave no signal of its approach to the crossing. While the proof for the plaintiff is necessarily circumstantial, it is sufficient standing alone, to warrant the conclusion that the deceased, after calling at the neighbor's house went on down to the railroad, and as he was crossing the track, was struck by the train, which gave no warning of its approach; and the circuit court properly refused at the conclusion of the plaintiff's...