Troutman's Adm'x v. Louisville & N.R. Co.

• Decision Date: 05 February 1918
• Citation: 200 S.W. 488,179 Ky. 145
• Parties: TROUTMAN'S ADM'X v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

200 S.W. 488

179 Ky. 145

TROUTMAN'S ADM'X v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

February 5, 1918

Appeal from Circuit Court, Kenton County, Common-Law and Equity Division.

Action by Archie Troutman's administratrix against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

Sampson J., dissenting.

Sherman T. McPherson and Edgar W. Cist, both of Cincinnati, Ohio, and Myers & Howard, of Covington, for appellant.

S.D Rouse, of Covington, and Benjamin D. Warfield, of Louisville for appellee.

CARROLL J.

Archie Troutman, while in the employ of the defendant railroad company as a foreman of track repair men, in attempting to board a moving freight train for the purpose of going to a place on the track where his attention was needed, was thrown under the caboose, the wheels of which ran over his legs, virtually severing both of them from his body, and from the effects of the injuries so received he died a few hours afterwards.

Some time after this his widow, as administratrix, brought this suit against the railroad company to recover damages for his death, which, as alleged, was caused by the negligence of the railroad company through its servants in failing to render or permit to be rendered necessary medical aid to the decedent. The petition charged:

That while the decedent was in the employ of the company as a track repair man, and in the performance of his duties, he attempted to board a moving freight train for the purpose of being carried to a place where the track was out of repair, and in the attempt was thrown under the caboose, which ran over his legs, severing the same at or near his knees, which caused the blood to flow from his body in large quantities, and required the immediate attention of a physician or surgeon to treat the wounds and stop the flow of blood; that immediately or very soon after he suffered this injury "the servants and employés of the defendant, including its conductor in charge of said train, took possession of and assumed the exclusive charge of the care of said decedent and attention to his wounds. Said conductor failed and refused to send for the nearest or any physician in accordance with the rules of defendant governing his conduct, and as was his duty in such cases, but placed one of his crew in charge of an engine and caboose as acting conductor thereof and put said decedent in said caboose, and gave said acting conductor instructions to take decedent to Latonia station. Before said engine and caboose left said Independence station, said conductor and the said acting conductor were informed and knew that a physician at Independence had been called by telephone and was on his way and would shortly arrive at said Independence station, but said conductor and said acting conductor refused to wait for said physician, and just before his arrival the said acting conductor left said Independence station and carried said decedent in said caboose to Latonia station, a distance of eight or nine miles, and sent for a physician there. During the time that plaintiff's decedent was riding in the caboose to Latonia plaintiff's decedent lost a large quantity of blood, the flow of which was enhanced by the rough ride in said caboose, and said loss of blood caused his death as aforesaid."

The answer was a traverse of the material averments of the petition.

After the pleadings were made up, the case went to trial before a jury, and upon the conclusion of the evidence introduced in behalf of the decedent's estate, the trial judge ordered a verdict for the railroad company, which was followed by this appeal.

Before stating the law that we conceive to be applicable to the case as presented by the record, we think it proper and convenient to set out at some length the facts as shown by the evidence, because in cases like this, and, indeed, in many other cases, it is necessary to have a clear understanding of the facts in order to adjudge in a satisfactory way the law of the case.

The accident happened in the daytime near a small station called Independence, and in view of the house in which the decedent lived. His wife saw the train when it suddenly stopped, and, apprehending that something serious had happened, went immediately to the place where the train was. When she reached there, she saw her husband, the decedent, and also the conductor, and four or five other persons who were around her husband. She testifies that her husband told them not to cry; that he would be all right as soon as he got a doctor; that Fred Beach, one of the men who were standing by, told the deceased that he was going for a doctor, and immediately started; that the nearest doctor lived about a mile and a half from the place; that after Beach started for the doctor the train crew uncoupled the engine from the train, which was going south, and attached it to the caboose on the north end of the train, and were in the act of putting the decedent in the caboose for the purpose of taking him to a hospital at Latonia, seven miles north of the place where the accident occurred, when Beach got back, and said to the decedent, in the presence of the train conductor, "I got the doctor;" that the conductor was present when Beach said he was going for a doctor and was also present when he came back and said he had gotten a doctor; that Beach said to the conductor, "The doctor is coming; ain't you going to wait for him?" and the conductor replied, "To hell with your doctor; no; I am not going to wait for your doctor; I am going to take this man to the hospital;" that then they put him in the caboose and she got in, and they started to Latonia in a few minutes, the engine pulling the caboose; that when they had gone a short distance the conductor asked the decedent if he had lost anything, and he replied that he had lost his watch, and the conductor said, "I will stop the train and get it," and the decedent said, "Don't stop and fool with my life;" that the train stopped only long enough to let one of the trainmen get off, and then went on to Latonia without waiting for the man who went after the watch to get on; that on the journey a good deal of blood flowed from the wounds of the decedent, but he seemed to be in good spirits when they started, and for some little time afterwards; that they got to Latonia in about 30 minutes after they started, and were there met by a surgeon with an ambulance, and the decedent was taken to a hospital in Latonia, where he died within a few minutes; that the engine and caboose started to Latonia about 15 or 20 minutes after the accident.

Birdie Troutman, a near neighbor of decedent, who lived within a few steps of where the train stopped, ran to it when she saw it stop and saw the decedent. She testifies that she heard Beach say he was going for the doctor, and supposed that the conductor and the other members of the train crew who were present also heard him say so; that when he came back and said the doctor was coming the conductor said, "Doctor, hell! we are going to take him to the hospital;" that his wife asked if she might go to the hospital with him, and the conductor said she could; that they did not wait for the doctor, but started for Latonia as soon as the engine could be brought from the other end of the train and coupled to the caboose; that Dr. Petty, who lived a mile and a half away, arrived a few minutes after the train had started; that the decedent when he left on the train was laughing and waving his hand at them, and told them not to worry, that he would be all right when he got to the doctor; that his legs bled more when he moved than when he was sitting still; that she did not see any person use any cord or know whether any cord was put about his legs, which were covered with a towel.

Fred Beach, a friend of the decedent, got to the scene of the accident very soon after it happened, and found the decedent lying on the side of the track. He said that he at once started for a doctor, after first saying he was going to get one; that the doctor lived a mile and a half from the place of the accident, and he went to probably three houses to telephone to the doctor before he was able to find a telephone over which he could get him; that after he had succeeded in locating the doctor he went back to the train and told them that he had telephoned to the doctor and he was on his way; that he heard some one say, he did not know who it was, that they did not want any doctor; that they were going to take him to Latonia, for which place the train immediately started.

Henry Troutman, also a friend of decedent, who reached the place of the accident before the decedent had been removed, found him sitting on the bank. He said that the crew tried to put some bandages around his legs, but that it did not amount to much; that when the train left Independence the decedent was talking freely and seemed to be cheerful; that his legs did not bleed much while he was sitting on the bank, but that when they moved him into the caboose they bled quite freely; that the decedent, when injured, was attempting to board the train for the purpose of being carried to a place about a mile distant to look at some bad track under his supervision, to the condition of which his attention had been called a few moments before.

Dr Petty, who was at his home, a mile and a half from Independence, the place of the accident, said that as soon as he received the message over the telephone he got in his machine and came at once in answer to the call; that it probably took him about six minutes; that when he reached the place he was told that the train had just started to the hospital. He further said that in the treatment of accidents...