91 Ky. 444 | Ky. Ct. App. | 1891
delivered the opinion oe the court.
Thomas J. Filbin was instantly killed in the night time while employed as a fireman upon one of the appellee’s' trains by it coming in contact with a tree that had fallen across the track. His administrator brought this action under section 3, chapter 57, of the General Statutes, which provides: “If the life of any person or persons is lost or destroyed by the willful neglect of another person or persons, company or companies, corporation or corporations, their agents' or servants, then the widow, heir, or personal representative of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover punitive damages for the loss or destruction of the life aforesaid.”
The petition avers that the death was caused by the willful neglect of the company in permitting the tree to remain standing within reach of the track, with knowledge, or when, by the exercise of reasonable diligence, it would have known, that its decayed
It is claimed that the company had notice that the tree causing the accident was liable, by reason of its decayed condition, to fall at any time, and endanger the lives of those upon its trains; and even if it did not know it, that yet, by the exercise of reasonable care in providing against obstructions upon its track, it might have known it; and that, therefore, in either event, it' was guilty of willful neglect. The tree did not stand upon its right of way.. It extended only twenty-eight feet from the track toward it, while it was about fifty-five feet away, and a fence between bounding the right of way and the land of the adjacent owner. The tree was about eighty-five or ninety feet high, and large otherwise in proportion. It stood upon the side of a hill that descended to the railroad track, but it leaned so much in the op
The night of its fall there was a severe storm, so much so that a gentleman near by in his buggy believed he was in danger of being overturned by the wind.
The only testimony offered by the appellant tending to show knowledge upon the part of the company of the tree’s condition, is that some two years before the accident a hand in its employ, and who was at work on the road at that point, went out to it for some purpose, and upon his return spoke of its decayed or hollow condition, and the danger of its falling. The evidence tends to show that he said this to the section boss-under whom he was at work, but it may have been in a general conversation with
In case of probable danger of obstruction by falling timber, it is the duty of the company, if it be standing upon its own right of way, to at once remove it, and if it be upon the adjoining land, then it should take steps to have it done. It is not, however, required to remove, or have removed, every thing which may possibly become an obstruction. This would be unreasonable; an impossibility would be required. A cyclone may hurl a tree from a considerable distance upon the track, or a boulder may tumble upon it from a long distance up a mountain side. It' is not bound to provide against imurobable accidents, or those arising from supernatural causes, and which can not, in the exercise of a reasonable judgment, under the existing
The question whether the appellee had thus failed in its duty was submitted to the jury under proper instructions, and a verdict returned in its favor.
Judgment affirmed.