140 Ky. 241 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
Oscar Sims lived with bis father about a mile and a quarter south of Ashland and near the line of the
The father of the young man testified that he went to 'the crossing the next morning; that the cinders were scuffed up as if something had been dragged over them from the road. Other witnesses testified to seeing the sign of a body being dragged in the cinders from the second or third tie beyond the end of the plank nailed on the ties for the crossing, and to seeing the blood and hair and scraps of his clothes, on the ties west of the cattle guard, which was eight feet from the crossing. The plaintiff also proved bv several witnesses that the train gave, no ¡signal of its approach to the crossing. While the proof for the plaintiff is necessarily circumstantial, it is sufficient ‘handing alone, to warrant the conclusion that the deceased, after calling at the neighbor’s house went on down to the railroad, and as he was crossing the track, was struck by the train, which gave no warning of its approach; and the circuit court properly refused at the
The defendant proved by its engineer and fireman that they did give signals of the approach of'the train to the crossing, and it introduced several witnesses who were not on ihe train who testified to hearing the signals. The defendant also proved by its employes on the engine (hat they were on the lookout as the train approached ihe crossing and saw no one there. The track was comparatively straight up to a few feet of the crossing; there a curve set in but there was nothing to interfere with their seeing one on the crossing. They did not know that the man had been killed until they were told of it at Ashland. The defendant also proved by its agents at Ashland who examined the engine and tender, there, that there was no blood or any sign of the accident anywhere on the engine, but that there were marks of flesh and blood and some small pieces of bone upon the oil box, which is on the left side of the tender, and along the front truck; also, flesh and blood and bones on the box of Ihe rear truck, and blood on the rear wheel of the rear truck on the left side. Similar signs were found on the trucks of the baggage ear underneath and between 1he wheels on the trucks. There were no signs on thi1 body of the car, but on the trucks it.was no more on one side than on the other.
The court in giving the jury the peremptory instruction upon all the evidence seems to have done so upon the idea that the testimony for the defendant showed that the deceased was lying down by the side of the railroad track and raised up after the engine passed, him and was struck by the boxing of the tender. It is insisted for the appellee that from the evidence as a whole, it may as reasonably be concluded that the deceased came to his death in this way as that he came to his death, from, being struck while passing over the crossing. We are cited to a number of opinions in which it has been held that where from the evidence for the plaintiff the inference in favor of the defendant’s negligence is no stronger than the inference that the injury occurred, in some other way, a peremptory instruction should be given. But this rule has no application. The difficulty here does not arise upon Ihe plaintiff’s evidence. The plaintiff’s evidence tends to show that the man was struck by the engine; the defendant’s evidence tends to show that he was struck by the tender after the engine passed him. But
We see no other error in the record; but for the error indicated, the judgment is reversed and the cause remanded for a new trial.