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

• Decision Date: 25 January 1916
• Citation: 168 Ky. 81,181 S.W. 938
• Parties: SUTTON'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

181 S.W. 938

168 Ky. 81

SUTTON'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

January 25, 1916

Appeal from Circuit Court, Nelson County.

Action by Richard R. Sutton's administrator against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

N. W Halstead, of Bardstown, James Garnett, of Louisville, and M M. Logan, of Frankfort, for appellant.

John S Kelley and John A. Fulton, both of Bardstown, and Benj. D Warfield, of Louisville, for appellee.

CLAY C.

This is a suit under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]) by the administrator of Richard R. Sutton against the Louisville & Nashville Railroad Company to recover damages for his death, which is alleged to have been caused by the negligence of the defendant. At the conclusion of plaintiff's evidence the trial court gave a peremptory instruction in favor of the defendant. Plaintiff appeals.

The facts are these: The company was engaged in reconstructing a bridge over Beech Fork creek, in Nelson county. This bridge is a part of the company's road running from its main line at Lebanon Junction, Ky. to Knoxville, Tenn. At the time of the accident a concrete abutment on the north side of the creek was in the process of construction. Beneath the railroad track was an excavation 38 by 32 feet, the bottom of the excavation being 40 feet below the track. A few feet west of the track, at the north end of the bridge, there was an engine, which was used for the purpose of operating a pump located at the bottom of the excavation and about 70 feet south of the engine. Just above the pump, and between the railroad tracks, or on the outside of one of the rails, was located a valve, which was sometimes used for the purpose of operating the pump. A pipe extended from the boiler of the engine to the valve, and from the valve to the pump. The railroad track beside the engine was on the ground, but as it extended south it passed the excavation, and when it reached the point where the pump was located it was about 40 feet from the excavation. The valve was placed in or near the track for the purpose of operating the pump from that point. It was not necessary to go to that point to operate the pump; it could be operated from the boiler of the engine. However, it was customary for the employés to go to the valve and use it for that purpose. Unless the pump was used, the excavation would fill with water, and it was necessary to operate the pump during the night, so that there would be no water in the excavation when the men returned to work in the morning. It was Sutton's duty to operate the engine and pump. He went to work at 6 o'clock in the evening, and remained at work until 7 o'clock the next morning. To keep the water out of the excavation it was not necessary to operate the pump all of the time, but only about one-third of the time. In addition to the above duties, Sutton was required to examine the bridge after the train had passed, and if he found anything wrong to report to the foreman. If he saw any trains passing without headlights on the engine, he was to flag them down and have the headlights lighted. Sutton was last seen between 11 and 12 o'clock on the night of June 14, 1912. At that time he was engaged in shoveling coal into the fire box beneath the boiler of the engine.

H. C Burdette, who gave this testimony, and who slept in some cars a few hundred yards away, says that he went to bed about 1 o'clock. After he had gone to bed, and some time after 1 o'clock, he heard a train pass going south. He saw Sutton's body the next morning about 4 o'clock, after it had been discovered by the crew of the freight train going north. Burdette examined the bridge, and found blood, flesh, and clothing extending from the valve south to the point where Sutton's body was picked up. Burdette also says that he heard a train going south about 1:30, but heard no signal given as it passed the bridge. J. H. Kirkland, the engineer on train 81, which passed south over the bridge about 1 o'clock, says that he never saw Sutton or knew that he had been killed until after the fact of his death had been reported to him. Thereupon he made a report, saying that his train killed Sutton. Kirkland could not remember whether he had his eyes on the track as he passed over the bridge or not. He saw nobody on the track. He also says that, in his opinion, it was the engineer's duty to look out in approaching the bridge. As he approached the bridge he gave the flag signal about three-quarters of a mile north of the bridge. Later on he gave the road crossing signal about one-half mile north of the bridge. After that he gave no signal. T. R. Coffee, the engineer of train 56, which passed over the bridge about 4:10 a. m., saw Sutton's body in the center of the bridge only about 30 feet away. About two-thirds of the engine passed over the body. He then picked up and took Sutton's remains to the north side of the river and laid them on a truck. He saw evidences of flesh and blood from the north end of the bridge to the center of the bridge, when he found him. He also found Sutton's hat on the north end of the bridge. The...