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

Citation159 Ky. 674,167 S.W. 882
PartiesWEIDEKAMP'S ADM'X v. LOUISVILLE & N. R. CO. [d1]
Decision Date19 June 1914
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Frank Weidekamp's Administratrix against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Benjamin F. Gardner and Edwards, Ogden & Peak, all of Louisville, for appellant.

Chas H. Moorman, T. K. Helm, and Benjamin D. Warfield, all of Louisville, for appellee.

TURNER J.

Frank Weidekamp was the foreman of a switching crew in the East Louisville yards of appellee on April 29, 1911, and, while so engaged on that day with his crew in taking from said yards to other yards in the city of Louisville a train of circus cars, was run over and killed. This is an action by his personal representative alleging that he came to his death by reason of the negligence of the appellee, and asking damages therefor. Upon the first trial a verdict for $8,000 was returned against appellee, but the court, upon motion, set that verdict aside and granted a new trial. On the last trial, at the conclusion of the plaintiff's testimony, the court gave a peremptory instruction to find for the defendant, and, from a judgment entered under that direction, this appeal is prosecuted.

It is conceded that, if the action of the lower court, in directing a peremptory instruction on the last trial, is erroneous there should be a reversal, with directions to enter a judgment on the verdict rendered at the first trial.

Weidekamp was a young man, in good health, active and alert, and had been engaged by appellee as a switchman for 11 or 12 years.

The evidence as to how the accident happened was substantially the same upon both trials, except that upon the second trial Rucker, who had been introduced by the defendant upon the first trial, did not testify, and Birg, a negro, who did not testify at the first trial, testified at the last.

The only negligence relied upon as causing the accident is that on the morning before the accident a crew of trackmen of appellee, in repairing the tracks at the point where the accident occurred, had taken from under the ties a lot of cinders and soft dirt and piled it along the track for a distance of 60 or 75 feet in a ridge from a foot to a foot and a half high, and that the decedent in attempting to board his train, while it was in motion, had in some way stumbled over or had been impeded by this ridge of dirt and cinders, and that it was the cause of the accident.

But it is the contention of the appellee: (1) That it was not only its right, but its duty, to keep its tracks in repair, as well for the protection of its employés as for the proper handling of the traffic, and that therefore, even if the ridge of dirt was piled along the side of the track, it was merely a necessary incident to the maintenance and operation of the railroad, and was not therefore in any event negligence; and (2) that even if it was negligence for this ridge of dirt and cinders to be where it was, giving the fullest effect to the whole evidence, it is neither shown directly nor by any fair inference that the ridge of dirt and cinders was the cause of the accident.

In our view of the case it is unnecessary to determine whether the existence of the ridge of dirt and cinders along the side of the track was negligence, and it therefore only remains to be determined whether there is any evidence from which it may be fairly said that the ridge was the cause of the accident, and this, of course, involves an examination of the evidence on that question.

There were only four witnesses introduced upon either trial who saw the accident or any part of it, viz., Rucker, Kessler, Birg, and Harpring, and only the latter three testified upon the last trial.

Harpring states that he was superintending the unloading of coal at a distillery a short distance away, and was on lower ground than the place where Weidekamp was killed; that there were some cattle on a side track between where he was and the place of the accident, but, by reason of being on lower ground, he saw Weidekamp while the cars were running over him by looking under the cattle cars. In speaking of the accident to Weidekamp, he says:

"Q. Did anything happen to him on the 29th day of April, while you were up there? A. Yes, sir; he got killed. Q. Did you see the accident? A. No, not all of it. Q. Just tell the jury what part of it you saw, if any? A. I saw the last several cars passing over his body as he was lying on the track. Q. On what rail of the track was his body when it was being run over? A. On the south. Q. Did you see him fall? A. No, sir."

J. H. Kessler states that he was 40 or 50 yards from Weidekamp when the accident happened, and describes it in this way:

"Q. I will get you to tell the jury just what happened, in your own way, just what you saw, to the best of your recollection. A. All I can say, Weidekamp tried to get on and must have slipped or missed the footstep, and fell down between them. Q. Will you please state positively about that, whether he missed his footstep? A. No, not particular, because that was done so quick, you know, you couldn't tell whether he missed his footstep or slipped. Q. You don't know about that? You don't know whether his hand slipped, or whether his feet slipped from the stirrup? A. No, sir. The Court: Which side of the car did he try to get on? The Witness: The north side, between the north-bound main and the south-bound main. Q. Where was the train at the time he tried to get on, on the north-bound main? A. On the south-bound main. Q. The south-bound main is the north track, isn't it? The Court: The north-bound main, the train goes to Cincinnati on that? The Witness: Yes, sir. The Court: And the south-bound main brings the trains into Louisville and on south? The Witness: Yes, sir. Q. On which side of the train was he, on the right-hand side or the left-hand side, going to Cincinnati? A. Going to Cincinnati? Q. Yes? A. He would be on the right-hand side; the train was coming this way. Q. He was on the right-hand side of the train looking towards Cincinnati, no matter how the train was going? A. Yes, sir. Q. Which side of the track were you on? A. The same side as Mr. Weidekamp. Q. Were you over next to the Elk Run Distillery or over on Mellwood? A. Next to the distillery. Q. That is the side he was on when he was killed? A. Yes, sir. Q. Did you see him make more than one attempt to get on that train? A. I think he made two, but never lost his handhold, is the way it looked to me."

And again on cross-examination:

"Q. Now, you say it looked to you as if he made two attempts to get on, and missed the first one, and then tried the second time? A. Yes,
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