Tennessee Cent. R. Co. v. Cook

• Decision Date: 23 January 1912
• Citation: 142 S.W. 683,146 Ky. 372
• Parties: TENNESSEE CENT. R. CO. v. COOK.
• Court: Kentucky Court of Appeals

142 S.W. 683

146 Ky. 372

TENNESSEE CENT. R. CO. v. COOK.

Court of Appeals of Kentucky.

January 23, 1912

Appeal from Circuit Court, Christian County.

Action by James A. Cook, administratrix of Jim Reeves, deceased against the Tennessee Central Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

John B Russell and Downer & Russell, for appellant.

Hester & Allensworth and J. B. Allensworth, for appellee.

LASSING J.

Jim Reeves, a negro farm hand, was run over and killed by one of the trains of the Tennessee Central Railroad Company, about 2 1/2 miles south of Hopkinsville, on the evening of July 18 1910. His administrator brought suit against the railroad and sought to recover damages for his death, alleging that it was due to the negligence of those in charge of the train. The company denied liability, and pleaded contributory neglect on the part of the deceased as the proximate cause of his injury and death. Upon a trial before a jury plaintiff was awarded $2,000. From the judgment predicated thereon, this appeal is prosecuted.

The facts, as disclosed by the evidence, are as follows: This negro man had been to Hopkinsville that day and was seen drunk on the track down near the residence of W. R. Boyd about 6 o'clock in the evening. He either lay or fell down on the track, his body lying alongside of the rail, on the outside thereof, with one or both of his feet crossing the rail. A freight train going south left Hopkinsville at 6:30. Mrs. Boyd, seeing the perilous position of the negro notified her husband, who had just returned home, and he went out upon the track and with a handkerchief attempted to flag this train. It is shown that the train whistled for Palmyra crossing, which is a point about 3,300 feet north of where the negro was killed. It whistled again at or near a private crossing, 1,500 feet south of Palmyra crossing. Boyd testifies that he was on the track before the train came in sight; that, when it approached this private crossing and whistled, he was in plain view of it, and could see the engineer and fireman in their respective places, apparently looking toward him; that the train did not check its speed at all until it came within 300 or 400 feet of him, when it whistled again, but did not check its speed, and he jumped out of the way; that the negro was lying upon the track about 475 or 480 feet beyond him; and that the train ran on beyond the point where the negro was lying before it stopped. Boyd is the only eyewitness to the accident who testified for plaintiff. Boyd's wife testified to hearing the train whistle three times. His daughter testified to seeing her father go out onto the track. The administrator testified as to the distances of these various points from where the accident occurred. And two practical engineers testified as to the distance within which a train of the size and weight of the one which killed deceased could be stopped, going at speeds variously estimated at from 18 miles to 30 miles an hour. They said that a train of this character, going 18 miles an hour upon a grade such as that was shown to be, could be stopped in the distance of a length and a half of the train. There were on this train 21 cars, the engine and caboose, and it was carrying 775 tons of freight. The length of such a train is between 700 and 800 feet; so that, according to the testimony introduced by plaintiff, with the proper appliances this train could have been stopped in about 1,200 feet.

The defendant company introduced the fireman, engineer, cub fireman, brakeman, and conductor as witnesses to the killing or the movements of the train at that time. The engineer and fireman both testified that they did not see Boyd upon the track until they were within less than 150 or 200 yards of him, and that they then did all in their power to stop the train, in addition to blowing the whistle, and that they did bring the train to a stop, but not in time to avoid striking the negro. They did not see the negro until after Boyd got off the track. As to the setting of the brakes, the engineer and fireman are corroborated by the cub fireman, conductor, and brakeman, all of whom testified that the brakes were hard set. No one on this train saw the negro until after they had passed the point where Boyd was standing, and he was about 500 feet from the negro. Each side introduced some evidence showing the result of tests made upon the ground at the place where the accident...