Thurman v. Louisville & N.R. Co.

• Decision Date: 14 March 1896
• Citation: 34 S.W. 893
• Parties: THURMAN v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

34 S.W. 893

THURMAN v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

March 14, 1896

Appeal from circuit court, Warren county.

"Not to be officially reported."

Action by Earnest Thurman against the Louisville & Nashville Railroad Company for damages for personal injuries. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Thomas H. Hines and B. F. Procter, for appellant.

J. A Mitchell, H. W. Bruce, and Wm. Lindsey, for appellee.

HAZELRIGG J.

At about 10 o'clock on the night of April 27, 1893, the appellant, a negro lad, something over 13 years of age together with two companions, between 16 and 17 years of age crawled under a freight car of appellee, at Bowling Green Ky. and got on the truss rods, where they rode in safety until they reached Lebanon Junction, at about 4 o'clock in the morning. From their statements, their seemingly perilous positions appeared to them to have been entirely safe, and even comfortable, as one of them, at least, slept a good distance of the way. The only danger they apprehended was from the brakeman, and at the various stops of the train they would crawl out, and hide, until after the usual inspection by those officials, when they would again take up their former positions. At the last stop, preceding the one at Lebanon Junction, they claim to have been discovered by a brakeman, who threw a rock at them, striking one of them in the back; but the train had already started, and the trainman swung himself onto the moving train, and they were not then molested further. As the train slowed up at the next station however, Lebanon Junction, and while it was running at the rate of some eight or ten miles an hour, they testify that a brakeman (they think the same one who had discovered them at the last station) threw a rock, striking one of them, and knocking him off the rods, and at the same time pushed the appellant off. By this means, the latter's leg and arm were crushed by the wheels of the car, and afterwards amputated. To the appellant's suit for damages, the appellee answered, denying that its trainmen had any knowledge of the position of the boys at any time during the run, until after the train had stopped at Lebanon Junction, when they were found injured, under the train, and on the track. Each of the crew testified to this, and denied seeing the boys or offering them any violence. After the injury, they were carefully attended to by the surgeons of the company. A verdict resulted for the company, and the chief cause of complaint here by the appellant is that the court refused to properly instruct the jury, and...