133 Ky. 219 | Ky. Ct. App. | 1909
Lead Opinion
Opinion of the Court by
Affirming.
Appellants, Southern Railway Company and Louisville & Nashville Railroad Company, own and usa in common a railroad yard in Jellico, a town of about 3,500 inhabitants. In the month of September, 1906, an engine of the Southern Bailway placed in the north end of this yard a ear loaded with 400 boxes
The court gave to the jury the following instruction : “Unless you believe from the evidence that the employes of the defendants, or either of them, kicked or shoved a car or cars against the car of dynamite, and that in so kicking or shoving the car or cars they did so with such unusual violence, force, and recklessness as-to cause the contents in the car to explode, you
Appellants contend that the court erred in permitting their rules to be read to the jury to show negligence, and allowing the introduction of the “Life Tables.” This court has so often considered and determined these questions against the contentions of appellants that we deem it unnecessary to discuss them and cite authorities thereon. This disposes of all the grounds for reversal presented by appellants save one, and that is: “The verdict of
Appellants admit that a number of witnesses on behalf of appellee testified to facts showing that their agents had shunted cars against the car loaded with dynamite and nitroglycerin, which caused the explosion; but, on the other hand, they claim that appellants ’ testimony shows such a state of facts that it was impossible for this to have occurred, as there was no engine in the yard, especially in the south end, that could have shunted the cars against the car loaded with dynamite and nitroglycerin. Appellee ’s testimony shows that the car or cars were kicked by an engine from the south end of the yard against the car and caused the contents to explode. Appellants theory is that the dynamite and nitroglycerin were .caused to explode by one Walter Eodgers shooting a rifle ball into them. On account of the importance of the case, we will not content ourselves with a general statement of the testimony, but will give a detailed statement and quote what each witness said as to what caused the explosion. However, it is necessary to describe the situation of the railroad yard in order that the testimony quoted may be understood.
It appears that the yard is about three-fourths of a mile long; that the general course is north and south, with the main tracks running through the center, and four or five side tracks on either side of it. The station is a little north of the center of the yard, and the water tank is a little south of the center, the ear containing the dynamite and nitroglycerin was about 200 yards from the north end of the yard, and was situated, according to the testimony of
The witness Thos. Tate, after stating that he saw the explosion, was asked: “Q. Do you know what caused the explosion? A. Yes, sir; I suppose I do. Q. State what. A. It was a car coming from the south, and butted against another, and just flashed like lightning, and tore things up. Q. Were you looking at it at the time of the explosion? A. I was looking at it and talking about the car” (meaning the car that was moving from the south towards the car loaded with dynamite and nitroglycerin).
Jack Kincaid testified as follows: “Q. Did you see this car at the time it exploded? A. Yes, sir. Q. What caused it to explode? A. This car of pig iron. Q. Where did it come from? A. It came from the lower end of the yard. Q. How fast was it coming when you saw it? A. It was running faster than it ought to be. They gave it á kick, and flew, and left it. Q. Was anybody down there with it? A. No, sir. Q. How far was it from this exploded car at the time you say it was kicked? A. It was a right smart piece, about the length of five or six cars. Q. How many cars were kicked? A. Two. Q. Box or
T. A. Butcher testified as follows: “Q. If you know what produced that explosion, I will get you to state to the court. A. I know this. I saw a string of cars come down and hit together, and then in an instant the explosion come. I was sitting there talking to a colored man by the name of Tate, and we were at work up there together, and the flash come, and 1 said, ‘Good God"; look at the lightning!’ ”
Jewett Garnett testified as follows: “Q. Just before, the explosion Occurred, did you see a Southern engine, or any other engine, moving cars in the switchyard down towards the southern end? A. I could not see whether it was moving any cars or not; but it was going in and- out down there. Q. How-close up did that engine continue to the time of the
Geo. Henderson testified as follows: “Q. Well, do you know anything about this explosion and collision of cars? A. I think I do. Q. Tell the jury what you know, and what your opportunities were for knowing. A. I saw the engine switching up the south' end of the yard .there, and give the cars a kick, and they came right on and struck that box car that was standing there that exploded, and.when the cars came together there was a flash of lightning run out, and the thing went off. * * * Q. You understand that location, do you (pointing to plat) ? A. Yes, sir; right there is where they were kicking those cars. This is the Commercial Hotel. Q. Yes. A. Right in here, now, is where they were kicking those cars. Q. Were they kicking them from up this way? A. They kicked them from here right down this way. Q. Hoav
Mrs. Murphy testified as follows: “Q. State where you last saw those cars. A. The last I saw of them they were going. They were in behind a building. Q. Were they moving rapidly? A. Yes, sir; they set them in rapidly. Q. You say you know where the explosion was. State how they were moving with reference to that point. A. They were moving fast. Q. In what direction? A. Going towards where the explosion was. Q. Did the engine kick those cars in more rapidly or less rapidly than usual? A. They were kicking them in fast- was what made me look
The witness Fred Densmore, after stating that he was on the ground where a tent for a show was being erected at the time the explosion occurred, and that ne had just arrived at that place, which was on the east side of the railroad, when the explosion occurred, he stated that he came from the west side of the railroad, where he resided, and crossed the tracks near the Commercial Hotel, and continued as follows: ”Q. Did you see an engine there, or any switching there in the yard? A. I saw an engine right there at the road crossing just as I crossed over. I stopped here (indicating) just about a minute and a half to wait for the engine to get out of my way until I could get over. Q. What was the engine doing? A. Pushing some cars around there. Q. Which way was the nose of the engine turned? A. Towards Knoxville. Q. The cowcatcher was towards Knoxville? A. Yes, sir. Q. In what way was it pushing those cars? A. Right back down this way. Q. You say that you stopped there at that time for them to get out of your way? A. I stopped right here in the road crossing. It was in my way. That is the reason that I stopped. As quick as it pushed across there I went on across. Q. Which did it push the cars down, fast or slow? A. Right hack down that way fast. Q. You say that was a few minutes before the explosion? A. Yes, sir. Q. Did you see what became of that engine? A. No, sir; I never noticed what became of it, any more than just about the time I got half way over to the show ground it was coming hack up this way,
Joseph Phillips testified as follows: “Q. Did you see anything up there, or did you see the explosion? A. Yes, sir; I saw the explosion, and saw the engine switching. Q. Did you see anything just before? Did you see any switching in the yard of the railroad company just prior to the explosion? A. Yes, sir; I saw an engine switching. Q. Where was that engine? A. It was on the south end of the yard. Q. The south end? A. Yes, sir. Q. Do you know where the old Commercial Hotel, or the Mountain Home Hotel, is situated? A. Yes, sir. Q. Where with reference to that hotel? A. Well, the engine was switching right there at the Commercial, back in this side of the Commercial, toward the depot. Q. From the Commercial Hotel toward the depot? A. Yes, sir. Q. Now explain to the jury what you saw that engine do. A. Well, she backed in there with some cars and cut loose from them, and the cars came on down toward the north end, and the engine went back that way (indicating south). Q. How did those cars go, slow or fast? A. They were going fast. I call it pretty fast. Q. What did the engine do when it cut loose from the cars? A. It went back toward the Commercial Hotel. Q. How did it go back, fast or slow? A. It went tolerably fast. Q. Did you see what became of those cars? A.' They went on down there and butted a box car. Q. What box car was that? A. It was the one, I
James Powers stated that Doug’s passenger train left the station a few minutes before the explosion, and continued as follows: “I saw an engine coming from the southern end of the yard, and it seemed like there was either one or two cars to it, and it kicked the car or cars back in. I saw one. I didn’t pay very much attention to the car, for it attracted my attention the engine going in such a flight. I wasn’t used to seeing them switching so fast, and that drawed my attention, and I noticed the engine, and it went out of my sight above the depot, and I just turned around, and aimed to step across, and then the explosion happened, and that was the last I knowed. I didn’t know anything more for some time. It knocked me down. Q. Do you know what became of that car or cars that was kicked by that engine? A. It came north toward where they showed me after-wards, to where the hole was dug out in the ground, where that car was torn up.”
William Lovitt testified as follows: “Q. Now, Mr. Lovitt, please state to the jury fully what you saw take place just prior to and at the time of the explosion. A. Well, I was sitting there in my door, and I was looking at Doug’s train going out — that was the Middlesboro train; and I was still sitting there, and these cars followed him, and they looked like steel gons to me, until they came in and struck this car, where them ears were setting there. I saw
James Scarbrough testified as follows: “Q. State what you heard at the time of the explosion, and immediately Before, if anything. A. I was in the room there, with nothing to attract my attention, and I heard an engine running, switching cars and running and I heard one unusually heavy Bump, and it attract-' ed my attention that it was something unusual, and immediately after I heard two reports. I thought something moved under me. I was on the second floor, and it sounded as though they turned some heavy object over two times, and immediately I heard the windows and glass Begin to fall. ’ ’
A- B. Botts testified as follows: “Q. Did you see any switching going on in the yard just Before the explosion? A. One engine. . Q. Where was it? A. Up south from the depot. Q. Where with reference to the
M. L. Lloyd testified as follows: “Q. Did you see any trains switching in the yard? A. Yes, sir. Q. Tell the jury what you saw that engine doing. A. I
The following persons saw an engine in the' south end of the yard in a position to shunt the cars against the car loaded with dynamite and nitroglycerin, immediately preceding and immediately after the explosion :
Jack Kincaid testified as follows: “Q. Did you see any engine on the yard? A. None but the one that was switching. Q. Did you see the passenger engine? A. Yes; it was gone. Q. After the passenger engine left, that was the only one you saw? A. Yes, sir. * * * Q. Did it have steam up? A. Yes, sir. Q. Did you see it when it was getting these cars and switching? A. Yes, sir. Q. Was it kicking the cars while switching. A. Yes, sir. Q. How many cars
A. L. A. Housely testified as follows: -“Q. Tell what took place before the explosion. Did you see an engine switching’ any cars toward the place where the car of dynamite was standing in the yard? A. Yes, sir. Q. Tell, now, what happened, and what caused you to see it. A. I could not tell you as to how many of the cars were being pushed by the engine, but directly a train came up there, and I was shoeing a horse at the time, and the horse got frightened, I had to stop until after the engine and cars had passed back, and the explosion came after I started ahead with my work. Q. Did you see the engine, and can you tell what one it was? A. I did not pay that much attention to it. Q. What did you do immediately after the explosion? A. I went down to the place. Q. Did you see the engine come back toward your shop about the time or just after the explosion — the one that had been switching? A. I do not know whether it was the engine or not. I saw an engine up here close,'but whether it was the same engine or not I could not tell.”
Gfeo. Sweat testified as follows: “Q. Did you observe a switching crew operating in the south 'end of the yard about that time? A. Yes, sir; Clear Pork train was making up to go out on Clear Pork, and it went to the south end of the yard before the passenger engine pulled out, and I saw the smoke up towards the Commercial Hotel about or a little before the explosion, but I could not see the engine. Q. Was it moving freight cars in the yard? A. Yes; they had been.”
Jewett Garnett testified to seeing an engine switching in the south end of the yard, as hereinbefore copied, and as follows: “Q. And that was the same engine that had been doing the switching? A. Yes, sir; it was standing over here (meaning on the track leading to the turntable and ash pit), popping off, between the Hackney building and the Commercial Hotel. Q. It was out on one of these tracks that run out toward the Hackney building? A. Yes, sir; it was somewhere near here. Q. When an engine pops off that way, it is because the steam is very high, is it not? A. Yes, sir; I suppose that is what it is for. Q. And this engine- you saw lying there was full up with steam? A. Yes, sir; the steam was up and popping off. * * * Was you looking at that engine at the time of the explosion? A. No, sir; I had come out of the door of the ice ear, and we had one block too many, and was putting it back, and looked out and seen the engine up there, and before I got the ice back the explosion occurred. * * * Q. It went on one of the tracks'toward the Hackney building? A. Yes ; on toward the turntable. Q. It is one of these tracks toward the Hackney building? A. Yes, .yes; it is the track that goes toward the Hackney
W. S. Harkness, manager of the Jellico Heat & Power Company, testified as follows: Q. State whether or not there was another engine had been switching cars just before that explosion. A.. I could not say whether it had been switching or not. Immediately afterwards I saw the smoke near the Commerical Hotel, and another engine hitched on my car of ice and brought it up. (Witness had been loading a car with ice a few hundred yards south of the railroad yard.) * * * Q. When you got to this crossing at the Commercial Hotel, ■ where was that engine located, if you know? A. I come up on the switch engine at a point about the letter E, I should judge about 100 feet, or possibly 150 feet, from the road crossing near the Commercial Hotel, and north of the railroad crossing. This engine was backing, and the car of ice was attached to the head of the engine, and the engine was backing, and I was on the engineer’s side, and I got off and come around the tender, and there was a railroad man — looked to me like an engineer of the switching crew — and he said, ‘We have done something.’ Do not remember what the exact words were. And we said, ‘What is the matter?’ and he said, ‘That car of dynamite is blown up.’ There was an engine standing on the turntable track, and the Daisy track are side by side. There was an engine standing on the turntable track. Q.
Geo. Henderson testified as follows: “Q. Tell the jury what you know, and what your opportunities were for knowing. A. I saw the engine switching up in the south end of the yard there, and give the cars a kick, and they came right on down and struck that box car that was standing there, that exploded, and when the cars came together there was a flash of lightning run out, and the thing went off.” (See, also, the quotation heretofore copied from his testimony.)
Mrs. Nettie Murphy testified as follows: Q. Did you notice anything going on in the yard previous to the explosion? A. 1 noticed ah engine switching there. Q. How long before the explosion? A. Just a few minutes. Q. Where was the engine when you saw it? A. Up above the depot, towards the Commercial House. Q. South of the depot? A. Yes, sir. Q. What was it doing? A. Setting some cars in. * * * Q. What did you see the engine doing? A. I happened to look out. The engine was making an awful noise. They were setting them in here (indicating). They set them, and they run hack. The engine run south. My little hoy was with me in the kitchen, and
Scott Oaks testified as follows: £iQ. Where were you at the time of the explosion at Jellico in September last? A. I was between the depot and the Commercial Hotel — what is known as the ‘Mountain Home Hotel’ now. Q. State whether or not you saw any switching in the yards just prior to the explosion. A. Yes, sir; I saw an engine south of the depot doing some switching over on the right-hand tracks as I was going south; up towards the Commercial Hotel. Q. Which way was that engine headed — the nose of it, the cowcatcher? A. It was headed south, towards Knoxville from Jellico. Q. How long, Mr. Oaks, was that before the explosion? A. Well, it was between a minute and two minutes; maybe three minutes. I don’t know exactly. Q. Do you know where the dynamite car was that exploded? A. No, sir; nothing more than I know where the hole was after the explosion. Q. Do you know where the hole was? A. Yes,, sir. Q. Well, from that evidence as to where it was, where were those cars-^-in what direction was those cars from this car of dynamite, where they kicked in there? A. They were going towards that hole. Q. State whether or not they were going slow or fast after they were kicked. A. They were going fast.”
Jack Burns, superintendent of the Proctor coal mines, testified as 'follows: “Q. Where was that engine? A. It sounded down there by the depot. I couldn’t tell how close. The Jellico G-rocery building was between me and the ear. Q. How could you tell that the engine was there? A. By hearing it. Q.
E. L. Grimes stated that he waited for an engine to leave the crossing, so that he could go to his home near .the Commercial Hotél, on the west side of the railroad; that as soon as the engine cleared the crossing he walked to his house, and within a few minutes the explosion occurred.
S. S. Trammell testified that, about one minute after the explosion, he saw an engine with steam up in the south end of the yard, near the Commercial Hotel. Also see the quotations from the testimony of Fred Densmore, Joseph Phillips, James Powers, William Lovitt, A. B. Botts, and M. L. Lloyd.
We find that appellee produced 14 witnesses, some of whom saw the collision and the explosion, and the others saw cars kicked in the direction of the car loaded with the dynamite and nitroglycerin a moment or two before the explosion. Appellee also introduced 18 witnesses who saw an engine switching in the south end of the yard, immediately before and after the explosion, and at a place from which it could have shunted the ears and caused the explosion.
Appellants’ position, in short, is that all these witnesses were in error, for the reason that, first, no engine was at the place Or in a position to have kicked cars against the car loaded with dynamite and nitro
Appellant’s train dispatcher, located in Knoxville, Tenn., testified from the train sheets that he had before him, and which were made by him from reports by telegram as to arrival and departures of trains in and from Jellico on the morning of the 21st of September, 1906, the day of the explosion, as follows: “Passenger engine, No. 1784, left at 6:15 a. m. Freight engine, No. 680, left at 7:35 a. m. Freight engine, No. 686, arrived at 7:35 a. m. Switch engine, No. 277, no time given. Dong’s engine, no time given. Show engine, No. 111, no time given. Proctor Coal Company’s engine, in and about yard all the time.”
The evidence shows that neither engines Nos. 1784, 680, 277, 111, Doug’s engine, nor the Proctor Coal Company’s engine, was in the yard at the time of the explosion, or, if there, were not in a position to have kicked cars against the car containing the dynamite and nitroglycerin. This eliminates all the engines reported by the train dispatcher, except engine No. 686, which brought into Jellico two freight cars, according to the conductor, or three, according to the dispatcher from his train sheet. This engine, as stated, arrived in Jellico at 7:35, as per train sheet, or at 7:40, according to the conductor’s register at depot in Jellico.
J. W. Cook testified as follows: “Q. Did you see any immediately afterwards? Did you see 686? A. Well, yes; but it was oyer there. Q. Where was' it? A. It was on the pit- — cinder pit. Q. Was that engine over there at the time you were looking around at these cars being located there, before the explosion —686, did you see it moving around in there anywhere? A. No, sir; I did see it moving over there. I seen it on the main line before the explosion. Q. You saw it on the main line? A. Yes, sir. Q. That was as it came up? Tell what 686 was doing. A. It just came up from down in the south end of the yard. Q. Coming from towards Knoxville? A. Yes, sir; up the main line with the engine and cab. I was on the platform. Q. Do you know where it had left its cars? A. No, sir. Q. Now the engine and cab— A. Came on up the main line and passed the depot, and 1 don’t know where it went after that until after the explosion. Q. After the- explosion you saw it over there? A. Yes, sir. Q. Could it have got over there after the explosion? Could it have gone up there, and passed this hole and debris and all, after the explosion? A. No, sir;'the tracks were all torn up. Q. That shows you, don’t it, that it must have gone before the explosion? A; Yes, sir. Q. It was headed toward Knoxville? A. I don’t know. I never noticed. Q. It' came along there, this engine and the cab, and you don’t know what it had done with its cars? A. No, sir. Q. It had come from Knoxville, hadn’t it?
W. O. Greer, night hostler in the railroad yard, testified as follows: “Q. Where was 686 when you saw it next time? A. 686? I had gotten about half way home, and I heard the blower start, and I looked and saw it in the pit. Q. What is the blower? A. It is something we use to give it draft to deán the fire quick, to keep the smoke from coming out of the door. Q. And you looked, and where was it standing? A. It was standing on the pit. I could see from where I was. Q. Was there any explosion up to that time? Had anything occurred down here at all? A.. No, sir. Q. And then you saw it again up here with the blower? A. Yes, sir. Q. Steam, etc., going up high? A. He was cleaning the fire. Q. How would that be? How would he have to have gone to that place, from the time you left him and started home to go to bed? A. There was only one way to come down the main track, and that was to come north down the main track and head in on the pit track. There is only one way to get there.” The witness stated that immediatély after 680 left the yard he walked about 200 yards to his room, pulled off his shoes, and at that moment the explosion occurred.
W. D. Stanfill, the day hostler in the yard, .after stating that he took charge of engine No. 686 upon its arrival in the south end of the yard, and took it to the north end and placed it on the ash pit, testified
L. P. Smith testified as follows: “Q. Did you see any other engine come into the yard after the switch engine had gone south (meaning engine 277)? A. Yes, sir; one of them 600’s come in. Q. Do you know what become of that? A. Why, they came with the cars in front of it, and the caboose, and put it on one of those back tracks in there. Then they went back towards the south end and came out on the main line, and went up to the north end of the track, and from there went to the ash pit. • Q. Did you see any train go out of Jellico with a 600 class engine about then? A. Yes, sir; after.Stanfi.il had pulled in with his engine on the main line, after getting out south, why there was another engine there made up a train with the caboose went out. Q. Another train with a 600 engine went out? A. Yes, sir. Q. How long was that before the explosion. A. Which one was that? Q. The one with the 600 engine that went off after the one that Stanfill took charge of? A. I couldn’t say, sir, exactly what time it was. I never paid particular attention to the matter, you understand; but it was some considerable time yet. Q. -It passed out of your view there? A. Yes. Mr. Fowler: Yes, of course. By Mr. Smith: Q. Did you see the passenger train pull out — the L. & N. passenger train? A. No, sir; that was at the depot, you see, and I was about 75 yards from the depot, south of there. ■ Q. Was there any switching being done in the yards there after those trains left? A. No, sir; none that I know of, not on the south end.”
J. B. Montgomery, a clerk in the station in Jellico, testified as follows: “Q. And you got .over there in this seat before the explosion? A. Yes, sir; when I came down stairs the L. & N. passenger train was just ready to leave. Q. Just ready to leave? A. Yes, sir; the engine was blowing very hard, and harder than I thought I had ever heard it, and that attracted my attention, and I looked down; and after I got over there, when I got to these two tracks— the force of habit makes me look both ways to see if an engine is mpving or cars moving, and I looked up towards the turntable, and I saw an engine standing on the ash pit, and then right over next to the ash pit another engine, and the L. & N. engine just ready to go out, are the only engines I saw whatever at all. I got across and went to sit down on the seat, and the explosion took place, and knocked me out. Q. Do you remember what engine that was over the cinder pit? A. No, sir; I don’t remember. Q. Do
Cf. W. Montgomery testified as follows: <£Q. In going from the hotel down to the depot, would you pass by an ash pit there where engines are cleaned out? A. Yes, sir; I did, Q. State whether or not you saw an engine on- the ash pit. A. I did. Q. Do you know what kind of an engine it was? A. Í do not. Q. Do you know whether it was a Southern engine? A. I just don’t know.”
. C. K. Patterson stated that he went to the station at 6:20 a. m. on the morning of the explosion, and while there saw two box cars standing on the tank track, and continued as follows: ££Q. What, if anything, was next to them (the box cars) as they stood there on the tank track? A. There was some coal cars. Q. Next to thejn? A. Yes, sir. Q. In your best judgment how many of those coal cars were standing next to these two box cars? A. I would have to guess at it. I didn’t count them. 1 guess there were seven or eight or ten of them. Q. Seven or eight or ten, somewhere along there? A. Yes, sir. Q. Do you remember who was with you, Mr. Patterson? A. Standing in front of the depot? Q. Yes, sir; if you remember ap.y]Dody that was there? A. Engineer Witherspoon was there. Q. Engineer Witherspoon? A. Yes, sir. Q. What engine was he handling? A. 686'. Q.-Before the explosion did you see his engine, 686? A. Yes, sir. Q. Tell the jury where that was. A. Standing hack of .the depot on the cinder pit track. * * * Q. That had nothing to
J. J. Roach testified as follows: “Q. Where was it (meaning engine 686) the last time you saw it? A. It was on the pit after the explosion. Q. You don’t know, of course, how it got on the pit? A. No, sir. Q. You know this — that it must have got to the pit before the explosion? A. It couldn’t have got there no other way, because you can’t take one over the turntable, and the tracks were all torn, up here, and plumb gone. * * * Q. How long after the explosion (meaning when he saw the engine on the ash pit) ? A. I guess it was about 10 minutes; something like 30 or 15. * * * Q. Couldn’t they take it around over the turntable? A. No, sir; not a 600'. You couldn’t turn a 600 engine on that turntable in a month. Q. You couldn’t turn a 600 engine on that turntable in a month? A. No, sir. Q. Impossible, isn’t it? A. Yery near it. Q. Isn’t it impossible to turn one of those 600 engines on that turntable? A. The L. & N. won’t allow you to turn one of them on there; no, sir.”
S. A. McKinney, the .conductor who was on 686, after stating that he placed the cars he brought into Jellico on the middle track, and that he went to the depot to register, said: “The brakeman took the engine around down the main line to the pit. ’ ’
J. A. Witherspoon, the engineer on engine No. 686, stated that he placed his loaded cars on the side
J. R. Swartzman, fireman on engine No. 686, stated that he saw it on the ash pit before and after the explosion.
L. A. Troutman, night watchman in the yard, stated that he did not know the numbers of the large engines, and continued as follows: “Q. It (meaning an engine of the 600 class) was standing there after the explosion? A. It was standing on the ash pit when I came down to the yard immediately after the explosion; I suppose in 20 or 25 minutes. Q. It was standing there? A. Yes, sir. Q. If it had come up from towards Newcomb, how must it have done to have gotten there? A.- Well,-if it had gone in from the north end of the yard, it would have had to have gone in before the explosion. Q. Why? A. Because the tracks were torn up on the north end, so it couldn’t have got in over them after the explosion. It would have had to have gone in before the explosion. Q. You saw it there after the explosion? A. After the explosion;-yes, sir. Q. Did those big, heavy engines use that turntable? A. They used it for a while; but it was against instructions to put those heavy engines on that table any more. Q. For how long? A. It had-been a rule for probably
J. B. Douglass, the conductor on the passenger train that started out immediately before the explosion, stated that when he went from town to his train he passed two engines in the east part of the yard, and continued as follows: “Q. Tell the jury whether or not you saw any cars on either of these tracks as you went down. A I don’t remember seeing any cars. I seen two engines. Q. Engines, I mean. What engines were they? A. Ill and 686. Q. What company? A. One was a Southern and one-was an L. & N. engine. Q. Which was the Southern? A. 686. Q. Where was that standing? A. That was standing over that cinder pit, or near that point somewhere. * * * Q. You were in a hurry to get down there? A. Yes, sir. Q. And you rushed right down by this engine, and stopped, and looked at the num ber on it? A. No, sir; I didn’t stop. Q. Iiow did you come to look at the number? A. I looked at it afterwards as I came up, in a few seconds after the explosion. * * * Q. When you started home to your family, you noticed the number of that engine? A. As I went down I noticed it. Q. Didn’t you say a while ago that you didn’t notice the number until after the explosion. A. I don’t know. I didn’t pay much attention to it.”
L. P. Paggett, conductor on Doug’s passenger train, testified with reference to a Southern engine as follows: “There came a Southern engine backing down the track, and I remarked to him (Mr. Cook, ‘They are going to cut us off, ’ and he hurried them up, and he followed them down the track and threw the switch, and by that time we were on the main — our
Harrison James, a track repairer in the yards, said that he saw two engines at or near the ash pit about 8 o ’clock on the morning of the explosion.
W. D. Cozett, who was at the time of the explosion conductor on a train that took a circus into Jellico about 7 o’clock on the morning of the explosion, and who is now assistant master of trains in the yard, stated that he saw and passed a Southern engine on the ash pit as he went to the depot to register, and continued as follows: ‘ ‘ Q. Well, which way were you facing at the time the explosion occurred? A. Pacing east. Q. With your back to the railroad? A. Yes, sir. Q. At that time tell the jury whether or not you saw this Southern engine standing on the pit track. A. Yes, sir; it was there. Q. How far was it standing from your engine, 111? A. I should think it was about 25 or 30 feet. Q. Do you know the number of that Southern engine? A. No, sir. Q. You didn’t notice it? A. I didn’t notice it. Q. Tell the jury whether or not you heard any rumbling of cars, or rolling of cars, in the yard just before the accident. A. No, sir; Í didn’t notice any. Q. You didn’t notice any? Do you know whether or not there were any engines down in the southern part of the yard at that time? A. I couldn’t say. No, sir; I don’t know.”
The following is the testimony introduced by appellants with reference to there being other cars upon the track that the car loaded with dynamite and nitroglycerin was on, which, they claim, prevented the kicking of cars against it:
C. F. Linger testified as follows: “Q. Plow many box cars were down there that you noticed, if you did notice? A. There were two on that track. Q. And some coal cars? A. Yes, sir;,there were two anyway, and might have been three. Q. There were two, and might have been three? A. Yes, sir. Q. Way on down there, on that same track, do yoti recollect whether there were any more coal cars? A. I don’t remember seeing any more coal cars. There were two or three more box cars, as well as I remember, still on farther south on the same track.”
L. A. Troutman testified that about 25 minutes after the explosion he saw two or three cars on the track next to where the explosion occurred, then a space of some distance, then four or five more cars, but did not notice any other cars farther south on the track. Another witness, a lumber dealer, whose place of business was west of the yard, stated that he
J. D. Hayden, roadmáster for the Louisville & Nashville, and who resided in Knoxville, Tenn., testi - fied that he arrived in Jellico on the morning of the explosion between 10:45 and 11 o’clock; that he found two steel cars near the place of the explosion, one of which was badly damaged; and that he found ten other cars situated on the samé track at different points.
W. F. Robertson, station agent in Jellico, testified, in substance, to the same facts.
Appellants introduced a photograph of the tank track, showing some cars on it. The picture was taken by S. S. Douglas about the middle of the afternoon of the day of the explosion.
As to the third proposition, to-wit, that the dynamite and nitroglycerin was caused to explode by Walter Rogers shooting into it with a 22 rifle, all the witnesses who testified upon the subject for either party testified that the car containing the explosives was situated north of the station, on the west side of the main line; that Walter Rogers and John Swafford were at a point west of the main line, near to it, and fired two or three shots at a small contents card tacked on the door of the car about midway between the floor and the roof of the car; that this occurred some 12 or 15 minutes before the explosion; that just before the explosion Rogers, Cook, the master mechanic
Swafford testified as follows: “Q. State whether or not you saw any shots fired then as you passed them, or soon after you passed them, as you were pulling out. A. As it backed down or pulled out. Q. As you were pulling out? A. Yes, sir. Q. Iiow many shots did you hear fired? A. I saw one. Q. Who fired that? A. Walter Rogers. Q. How far was he then from the car? A. He was between the main track and the car. He was about the same place. Q. He was between the main track and the car? A. He was between the main track and the car, and I don’t know exactly what point he was at; but he was between the main track and the car. Q. How far did that put him from the car? A. It put him anywhere from 10 to 20 feet. Q. Where was Cook? A. He was right there beside. All three were standing there side by side. Q. Did you see more than one shot fired? A. No, sir. Q. In what direction did he point his gun, with reference to the car, toward or away from it? A. Toward it. Q. In what direction .was his face turned? A. Right toward the car. Q. How long after that before the explosion happened. A. Anywhere from one-half a minute to a minute and a half, something like that; a minute anyway. Q.
J. A. Carson, after stating that he saw Eogers, Cook, and Sellers on the east side of the main track, immediately before the explosion, that Eogers shot at something under the Jung Brewing Company’s -warehouse, and that all three of them squatted and appeared to be looking under the brewery, continued as follows: “Q. Now, give the best impression you can, Mr. Carson, to the jury, how many minutes’ time, about how long it was, from the time they shot under the brewery — seemed like shooting under the brewery — till the explosion? A. Well, it was about, it seemed to me like— Well, I just turned around there when Walter Eogers shot. I turned around there, and looked and seed him, and seed Sellers. He went around one way and Cook the other. I turned around, and they all squatted down there, and I just turned back, and went to cleaning my fish, and just about that time it went off.”
H. L. Hall stated that he had made a test of the strength of a 22 rifle similar to the one used by Eogers, and continued as follows: “Q, I wish to know, Judge Hall, as to what depth or penetration your gun will— Have you tried to see how far it will go into wood? A. This 22 rifle? Q. Your little gun, the sister of this. No; this is yours? A. Yes,
. Appellee introduced the following testimony, which rebuts that of appellants upon this point:
Jack Burns testified as to the construction of ;a dynamite car, stating that th’e outside of the car. is made of hardwood one inch thick fastened to two by
The witness S. S. Trammell testified that he made test of the strength of a 22 rifle, such as was used by Rogers, by firing six shots at a pine box, each side of which was seven-eights of an inch thick, and that the balls went through one side, and made a slight dent in the other, and dropped to the ground.
The following testimony was introduced by appellee to show that no cars 'were on the track, south of the car that exploded, up as far as the Commercial Hotel, except the pig iron car and the two big steel cars, which appellee claims were shunted against it:
W. S. Harkness testified as follows: “Q. Then what did you do after that? A. I went to where the explosion occurred. Q. Did you see any cars that were torn to pieces? A. Yes, sir; I saw three cars, that I remember, right up against the exploded hole on the same track. Q. What kind of a car was nearest
Joseph Giles, fireman on the Proctor Coal Company’s engine, stated that about 6:35 or 6:40 o’clock on the morning of the explosion he backed the engine in from the north end of the yard, coupled onto the car containing the explosives, pulled it out with nine empty coal gons, which were coupled to it, moved north, cut the nine gons off, and kicked them onto the Proctor track, and pushed the car containing the dynamite and nitroglycerin and probably another back on the track where he found them, and that there were no other cars on that track at that time, and continued, in answer to a question as to whether or not there were any cars on the tank track, as follows: “A. There was nothing; no, sir, I went up the tank track, and stopped right here, and hopped off of my engine, and went off over here, and hit the tank track, and went across over here, and went to the show cars. Q. Was that before the explosion?
Jack Burns testified that the tank track was clear from the car containing the explosives to the south end of the yard before the explosion; that after the explosion there were remains of a box car and two steel cars near where the explosion occurred.
Jack Kincaid, after stating that the car of explosives was 300 or 400 yards from the depot, testified as follows: “Q. Now, were there any cars between the depot and this dynamite car before these two coal cars loaded with pig iron came down against the dynamite car? A. I did not see any. There was not any on that track but the two coal cars.”
It thus appears that the evidence on all three of the propositions is very conflicting. It is contended that a camera cannot “lie,” and that therefore the photograph showing cars at intervals on the tank track after the explosion is conclusive of the fact that the cars were there, and that they rendered it impossible to shunt cars onto that track and cause the explosion. It must be remexpbered that this picture was not taken until about the middle of the afternoon, after the explosion at 8 o’clock in the morning; that there had been, during the time intervening, three engines in the yard, either of which, in its regular course of duty, could have placed these cars there; nor is it shown, positively, that the car containing the explosives was on the tank track when the explosion occurred. The engineer who coupled onto the car last at about 6:30 o ’clock says he either
Nor was it impossible for the explosion to have been produced by kicking of cars against it, even though there were other cars on the same track. The yard is slightly downgrade from the south end to near the car containing the explosives. It was not impossible to have kicked with an engine'a car or cars in the south end of the yard against the intervening car or cars on the line which would cause it to start downgrade and the first to stop, and so on until the car nearest the car loaded with the dynamite and nitroglycerin would be made to collide' with it and-produce the explosion. This can be understood by all who have seen one solid body roll against another :and strike on center. The first will instantly stop and the other start. If the cars were upon the track as
The jury heard and determined the evidence on the question of the rifle shot causing the explosion against appellants’ contention, and, in our opinion, their finding',was not against the weight of the evidence, for it rather preponderates in appellee’s favor. Of course, the last shot that Swafford saw Rogers fire, which was about 1% minutes before the explosion, did not produce the explosion. Carson says that this shot was fired at some object under the brewery. It is also exceedingly doubtful whether-the little target gun had sufficient penetrating power to reach the dynamite and nitroglycerin and cause them to explode. Appellants would have this court say the verdict of the jury is flagrantly against the evidence, when it is founded upon the testimony of 14• “eyewitnesses*” corroborated by at least that many more, who testified that the explosion was caused by'the shunting of cars against the car loaded with the dynamite and nitroglycerin, because witness Swafford testified that the last he saw of Rogers he had his target gun in a position to load it, that therefore it is inevitable that he loaded it and fired at the car, and that- the ball penetrated to the
This leaves only appellants’ first proposition to be considered, which is that there was no engine in the south end of the yard that could have kicked cars against the car loaded with the explosives. As will •be seen from the testimony referred to, appellants introduced much testimony tending to support their position that engine No. 686, was at the time of the explosion, upon the ash pit track which is on the east side of the yard. As conclusive evidence that it was there before the explosion, it was shown that the ash pit track was torn up by the explosion at a point between the ash pit and the north end, which rendered it impossible, after the explosion, to place this engine upon the ash pit; there being a turntable between the south end of the track and the ash pit which was too weak to hold one of these large engines. After appellants had progressed with their evidence and this theory for a time, it was developed that this engine, No. 686, had the day of the explosion, about 1 p. m., been taken out over this turntable. After this it was conceded that this turntable would hold the large engines, but contended that it was a great deal of trouble to get one of them across it.
Appellants’ contention is that engine No. 686 arrived, according to the train sheet, at 7:35 o’clock on the morning of the explosion, and that the explosion-occurred at 7:47 o’clock, thus giving the engine 12 minutes to place its loaded cars on the sidings, recouple to its caboose, and go to the north end of the yard, throw a switch, and run back to the ash pit. It may be true that the engine would have
Under the instruction, the jury was compelled-to believe from the evidence, before it could find for appellee, that the explosion was caused by an engine, not only kicking cars, but doing so with great, unusual, and unnecessary force, against the car containing the dynamite and nitroglycerin. The jury found in favor of appellee ,and their verdict is abun
The case of Howard v. Louisville Ry. Co., 105 S. W. 932, 32 Ky. Law Rep. 309, was one where appellant sued for damages for personal injuries. She alleged that appellee’s servants started the car by giving it an unnecessary and violent jerk, which caused her injuries. She introduced three witnesses who sustained the allegation of her petition. Appellant did not introduce any direct evidence to the contrary; but the jury seemed to have disregarded the statement of her witnesses and found against her. In considering the case on appeal this court said: "In trials by jury it does not follow that because one or more witnesses testified positively concerning a fact, and there is no evidence to the contrary that the verdict must be flagrantly against the evidence. The number of witnesses who testify to a fact is not necessarily a controlling feature in determining its truth; neither does the fact that their evidence may not be contradicted by word of mouth compel its acceptance as true. The jury have the
This court has often.enunciated this rule. This court was established for the purpose of seeing that parties have a legal trial, a trial according to legal principles, but not to weigh the evidence. That duty belongs to the jury, and this court should never disturb their verdict, when no errors have been committed by the court, except in extreme cases. We are of the opinion that there is sufficient testimony to support the judgment in this case; i. e., that the explosion resulted from the violent kicking of cars against the one containing the dynamite and nitroglycerin.
We are of the opinion, however, that the court erred to the prejudice of appellee in confining his right of recovery to that single issue. lie should have, also, been permitted to recover if the jury believed from the evidence that appellants negligently placed this car, loaded with dynamite and nitroglycerin, in its yard in the city of Jellico, for the space of 11 hours, without taking any steps to guard
In early7 times a common carrier was not bound to receive for transportation dangerous articles, such as nitroglycerin, dynamite, and gunpowder, unless there was some statutory provision requiring it, and those who undertook to transport them did so at their own peril. 3 Wood on Common Carriers, Sec. 113; 2 Rorer on Railroads, Sec. 1231; New York
It is stated in 19 Cyc. p. 6, that the same degree of care is required of those transporting explosives or combustible oils as is exercised by merchants and those handling them, and many authorities are cited to sustain the rule. In the case of Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654, the court said that an individual has no more right to keep a magazine of powder upon his premises, which is dangerous, to the detriment of his neighbor, than he is authorized to engage in any other business which may occasion serious consequences. In the same case the court said that in Myers v. Malcolm, 6 Hill (N. Y.)
The case of Ft. Worth & D. C. Ry. Co. v. Beauchamp, 95 Tex. 496, 68 S. W. 502, 58 L. R. A. 716, 93 Am. St. Rep. 864, is a case in point. In thqt case a car loaded with black and giant powder was delivered in the yar'd of appellant in the city of Bowie, Tex., land at a place upon the transfer switch in charge and under the control of appellant, the Ft. Worth Railroad Company. It was permitted to remain there until the morning of April 5th, when another car near it was set on fire, supposedly by a tramp, which caused the powder to explode and destroy the house of appellee, Beauchamp, which was situated about 800 yards distant. The lower court gave a statement of its finding of facts, in which it is said that the car containing the powder stood about the center of the switch and within -a radius of one-fourth of a mile of some 40 residences, and within a radius of three-fourths of a mile of the greater portion of the residence and business portion of the city, the city having a population of about 2,600 people, with a public road running within a few feet, and with the main line of defendant within about 20 feet, and that of the Chicago, Rock Island & Texas Railway within about 200 feet, of Avhere the car of powder was permitted to stand, and, further, that there was scheduled to pass this point, upon the two roads, 16 trains daily, besides extras. The lower court further found that defendant placed no guard or watch about the ear of powder, that its contents were known to the agent, who receipted for the car, and that there was placarded upon the walls of the car the following, viz.; “High Explosives
In the case at bar the car containing the explosives was within 150 yards of the main portion of the city of Jellico. Many persons lived and performed labor all around the place it was located. It is proved, without contradiction, that within 20 feet of where the car
The rules established by appellants; defining the precautions to be used in the transportation and care
For these reasons, the judgment of the lower court is affirmed.
Dissenting Opinion
(dissenting). George M. Adkins was killed by the explosion of dynamite in the railroad yards at Jellico, Ky., on the morning of September 21, 1906. The yards there are used ‘by both the Louisville & Nashville Railroad and the Southern Railway; Jel
This car of dynamite had been shipped from Emporium, Pa., and arrived in the yards at Jellico, over the Southern Railroad, at 8:30 p. m., September 20th. It remained there over night, and at 7:47 on the following morning the explosion occurred. Plaintiff proved by the testimony of several witnesses that they saw an engine shunt a car or cars against the car containing the dynamite, and that immediately or shortly thereafter the dynamite exploded. He also proved by several witnesses that they heard the noise of the impact when a car or oars were shunted against another car or cars, and that shortly thereafter the explosion followed. The defendants insist that explosion was not caused by the shunting of a car against the car of dynamite, but by a man named Rogers shooting into the car with a rifle. They proved by the testimony of several witnesses that this man and others had been shooting into the dynamite car before the explosion occurred, and that just immediately before the explosion he was seen to raise his rifle again as though to shoot. They also proved that a rifle of the make and caliber used by Rogers has sufficient penetrating force to go through a plank of similar material and thick
Complaint is made because this load of highly explosive substances was brought into the yards and permitted to remain over night there without being-guarded. The trial judge was evidently of opinion that this act on the part of the company or companies was, not, in itself, negligence; and in this conclusion I concur, for the proof sho’ws that, as packed, the dynamite was perfectly safe for shipment. Besides, no amount of care on the part of the companies in the handling of the car could have prevented the explosion if it was produced by the rifle shot; and if it was not, the necessity for such care is wanting. As plaintiff’s witnesses did not identify in any way the engine which they said shunted the car that did the damage, defendants undertook to show, from the location of every engine that had been in or about the yards within the hour just previous to the explosion, that it was impossible that a car could have been shunted against the dynamite car, as alleged. They also attempted to show, from the position of freight cars upon the track upon which the dynamite car was standing, that it would 'have been impossible for the explosion to have been produced in the way and manner in which the plaintiff claims it was. In order that the location of the engines and cars, as fixed by the various witnesses, may be understood, it becomes necessary to describe the yards and tracks at some length.
The yards at Jellico lie partly in Kentucky and partly in Tennessee. The northern part is in Kentucky, and the southern part in Tennessee. The Louisville & Nashville Railroad trains, in coming into and going from the yards, use the northern end, and the
It is argued with great earnestness for the defendants that the number and location of the cars on the tank track and its spur completely refute the testimony of plaintiff’s witnesses as to wbat caused tlie explosion, for none of them say that there were more than three cars ¡attached to the dynamite car, or that more than three cars were shunted into the dynamite car; whereas, by actual count, there were shown to be fifteen cars on this track, south of the wrecked dynamite car, 'figuring those on the eastern end of the tank track, and thirteen cars, counting those on the western end. So that, there must have been not less than thirteen cars pushed by the engine that shunted the car into the dynamite car; whereas, no witness introduced by plaintiff places the number at more than six. There is no conflict in the record as to what engines were in or near the yards within the hour just previous to the explosion. These were the L. & N. engine known as “Doug’s Engine,” L. & N. engine No. 111, the Proctor Coal Company’s engine, Southern switch engine No. 277, Southern engine No. 680, and Southern engine No. 686. These last two named were, extra large freight engines. Defendant’s witnesses testify that these six were all of the engines that had been in or near the yards within the hdur just previous to the explosion. That their testimony upon this point is true is strengthened by the fact that no one testifies to seeing any other engine in or near the yards during this time. The explosion so tore up the track as to render all of the tracks north of the point where the explosion occurred impassable, either by being warped and thrown out of line or else
Defendants have undertaken to account for the location of each of these engines. The L. & N. engine known as “Doug’s Engine” was attached to a northbound passenger train which had pulled out of Jellico just a few minutes before the explosion. It is conceded that this engine shunted no car against the car of dynamite; and could not have caused the explosion. The Proctor Coal Company’s engine was standing over on the coal company’s switching track, and, from its position and the fact that it was not then being used, it must be excluded from consideration. L. & N. engine No. Ill is shown by the testimony of witnesses, both for plaintiff and defendants, to have been at the time of the explosion, standing oyer east of the depot near the “cinder pit,” on the track known as the “old man’s track.” It was proven to have been there before the explosion, and was there after
Plaintiff’s case rests upon the allegation of his witnesses as to how they saw and heard the car shunted into the dynamite car, and defendants’ defense must rest upon their ability to establish, first, that there was no engine in the yards, at the time of the explosion, to have shunted a car; second, that from the location and number of cars on the tank track and its spur, south of where the explosion occurred, no car could have been shunted into the dynamite car unless the engine that did so afterward placed the other cars upon the track as they were found, by count and measurement, to be, and as partially shown by the photographs taken shortly after the explosion they were; third, that the dynamite was so packed that it could not have been exploded by the impact of a car or cars shunted with the force described by
'This is a large record, and a great many witnesses have testified. Much of their testimony is merely cumulative, and upon points not necessary to the determination of tlie real questions in issue. It is only when the evidence of each witness is carefully read, and his opportunities for obseivation considered, in connection with the physical facts, which are not controverted, that the truth as to how the explosion occurred can be ascertained. With the record so considered and analyzed, it is clear that no engine shunted a car or cars into the dynamite car, for the simple reason that not one was in a position to do so. The witnesses who say that a car was shunted into the dynamite car are so overwhelmed with the physical facts shown in the record, and other facts proven —not by a preponderance of the evidence, but by the evidence of many witnesses undisputed — that the value of their testimony is destroyed. Their statements as to what caused the explosion are so completely refuted by the facts as shown by the record that their testimony cannot be accepted as the basis for a judgment to rest upon. Excuse for their being mistaken is not wanting. Their minds, if not warped by personal interest, have become confused in trying to bridge the chasm made in the trend of current events by the terrible catastrophe, and, while they no doubt recall various movements of engines on that day, they have evidently not done so in the natural order in which they occurred. No doubt they saw
There was no reason for observing the movements of the engines, or any one of them, on that morning until after the explosion, and then the witnesses, in seeking for the cause, would naturally remember that they saw an engine shifting cars about the yards, or heard cars being shunted together with considerable, or more than usual, force. Several witnesses say they saw an engine shunt a car or cars into the dynamite car, and the explosion followed. They differ as to the kind of engine. Some say large; others small. Some say one car; others several. So, also,
The defendants have demonstrated to a practical certainty that the bullet fired from the Rogers rifle caused the explosion. He was in no wise connected with either of the defendant companies, and they are not answerable for the result of his conduct.
The judgment should be reversed. For this reason,
Appellants’ counsel insist that they should be granted an oral argument in this case on the question discussed in the last 11 pages of the manuscript opinion, to wit, as to whether the railroads were guilty of actionable negligence in failing to exercise reasonable or any care to protect the public from injury when they left the car loaded with the explosives in the yards unguarded. As this ques tion was not referred to in the oral argument had before the case was decided, it not being necessary to a determination of the case, as the action was tried out in the lower court on the sole question as to whether the explosion occurred by reason of shunting cars against the one loaded with the explosives, or as to whether it was caused by a shot fired from a small rifle, we have concluded to withdraw that part of the opinion, and it is so ordered.
Therefore the motion for oral argument is refused, and the petition for rehearing is overruled.
