Stuart's Adm'r v. Nashville, C. & St. L. Ry. Co.

• Decision Date: 09 January 1912
• Citation: 142 S.W. 232,146 Ky. 127
• Parties: STUART'S ADM'R v. NASHVILLE, C. & ST. L. RY. CO.
• Court: Kentucky Court of Appeals

142 S.W. 232

146 Ky. 127

STUART'S ADM'R v. NASHVILLE, C. & ST. L. RY. CO.

Court of Appeals of Kentucky.

January 9, 1912

Appeal from Circuit Court, McCracken County.

Action by James A. Stuart's administrator against the Nashville Chattanooga & St. Louis Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Eaton &amp Boyd and Bradley & Chilton, for appellant.

Wheeler & Hughes and Claude Waller, for appellee.

CARROLL J.

In this action to recover damages for the death of James A. Stuart the trial court, upon the conclusion of the evidence for the appellant, who was the plaintiff below, directed a verdict in favor of appellee, the defendant below. The only question for decision is, Did the court err in taking the case from the jury?

On the 29th of November, 1910, about 6 o'clock in the evening the deceased, Stuart, was found dead near the railroad tracks of the appellee company at a street crossing in the city of Paducah. He was first discovered by the conductor on a street car, who testified, in substance, that when the street car reached the crossing on its way from the Union Depot, to which place it had gone a few minutes before, a freight train was standing on the crossing; that in a few minutes the freight train cleared the crossing, and he then went out on the railroad tracks in front of the street car to see that the way was clear, and discovered the dead body of Stuart near the railroad track. He said that he did not notice the train until the car reached the railroad track, when he discovered it on the crossing. Asked if he saw or heard any signals given by the train when the street car reached the railroad on its return from the Union Depot, he said: "I did not notice any signals until after the crossing was cleared, and then the bell was ringing down the track, and that is when I give the alarm that they had killed a man. The bell was ringing down below the crossing; that was after the train had cleared the crossing. Q. You heard no whistle blowing or anything of that sort? A. No sir."

The motorman on the street car testified that when he crossed the railroad track with the street car, on his way to the Union Depot, he noticed the engine and train standing about 150 or 200 yards from the crossing; that after he crossed the train moved down the track, and on the return trip from the depot, which was only a short distance away, the train was standing on the crossing; that he did not pay any attention to the train from the time he crossed the track, on his way to the depot, until he returned, and found it on the crossing; that he did not know whether the engine bell was ringing or any signals were given, as the train moved from the place it was standing, when he went to the depot. He further testified upon this point as follows: "Q. Could you have heard the bell if it had been ringing? A. Oh, if I had been listening for it particularly, I might have heard it; but we wasn't thinking nothing about the train at all, only I knew I stopped, and seen it there as I went to the depot, and while we were at the depot it pulled across the crossing. Q. How long were you at the depot before you returned to this crossing? A. Some four or five minutes, I reckon. Q. Was the engine bell ringing when you crossed the track going to the depot? A. I did not notice it ringing. Q. When it was up at the depot? A. I did not notice it was ringing up there. Q. Before the train moved over the crossing, did you hear the bell on the engine ringing? A. No, sir; I did not. Q. What did the flagman do when he cut the train in two? A. He walked in front of the car. Q. Did he give any signals for the train to move in any direction? A. Yes, sir; he signaled with his lantern. Q. What did you do then? A. Rung my bell and started up just as the train was moving out; I had not got clear of the crossing, and the conductor hollered, and says: 'Wait! Here's a dead man'--and I told him I couldn't stop on the railroad, and I pulled across the railroad and stopped my car. Q. After the brakeman signaled for the train to move up, state whether or not you heard the bell begin to ring then? A. Yes, sir."

The coroner and a Mr. Vicks testified that when they went to the place where the body was, about an hour after the man was killed, they found blood at different places on the track indicating that the body had been dragged by the cars on the rails or tracks several feet from the place where the man was first struck, and then dragged back again. This is the substance of all the evidence introduced for the plaintiff. There is no direct evidence that the deceased was killed by the train, or that he was killed at or on the crossing; but we think the inference may fairly be drawn from the evidence that he was killed by the train at or near the crossing. The motorman and the conductor on the street car were the only witnesses who were inquired of or gave evidence concerning signals given by the train; and it appears from their evidence that they did not give any attention to the matter of signals, or hear any, until after the street car returned from the Union Depot, and was standing waiting for the train to clear the crossing; and that when the train moved off the crossing the engine bell was...