115 Ky. 270 | Ky. Ct. App. | 1903
Opinion op the court bt
Affirming.
Appellee, W. E. Davis, on December 22,1900, was a track walker in tbe service of appellant on its section near Rocky Hill station. As be was going along tbe track in tbe discharge of bis duty, be saw a train coming, and got to one side, as usual When the train was something like 200 yards, from him, be beard a rattling, and saw rocks throwing out. He then aimed to get further away, and as be turned around tbe rocks hit him in tbe iside, on the leg, and up in the back before he had time to get away. The train was going south, running something like fifty miles an hour. The rocks were thrown out by a rod or something of that sort under tbe bottom of the train, which1 was dragging against .the ballast and ties. Appellee had been south to the end of his section, and was returning. As he went down, there were no dents upon the ties' or ballast, but from the point where he was struck, for something over a mile back, there were dents in the ties and in the ballast, evidently made by the object which threw the rocks out. These dents continued for a mile or more beyond the point where he was hurt, and at the point where they stopped an iron rod was found, six feet long or more, and nearly an inch in diameter. In some places it struck the cross-ties and at others it struck the ballast. It is shown by the proof that when anything gets down under a train it will throw out the ballast in this way. Appellee had seen it happen before, but not so bad as this. It is also shown by the proof that, although these dents upon tbe track continued for something over two miles, no one
It is earnestly maintained for appellant that no negligence on its part is shown, as all the facts established are as consistent with the hypothesis of unavoidable accident as that of negligence; and that, the burden being upon the plaintiff to show negligence, he has failed to make out his case. While it is true that the train might have picked up a rod or beam, and dragged it along the track, knocking out the rocks, without the knowledge of those in charge of the train, we are doubtful if they would be excusable for
One of the grounds for new trial relates to a conversation had by some bystanders in the presence of two of the
Judgment affirmed.
Petition for rehearing by appellant overruled.