Lucas Moore sued the L & N for damages following the destruction of two of his horses by a train on 8 Nov 1903 near Huber's Station in Bullitt County. The case went to the Court of Appeals with the railroad claiming that evidence of negligence did not exist. As you will see, the court did not agree.
LOUISVILLE & NASHVILLE R. R. CO. v. MOORE.
(Filed February 14, 1905 - Not to be reported.)
Railroads-Damages-Killing of stock-Where on examination of the railroad track the morning after stock were killed by the train showed that they ran on the track for 300 yards, it can not be presumed in the absence of proof that the horses left the track and then returned to it, and in view of the fact that the horses were not seen until they were struck and that the train ran out of the fog before it reached the point where the horses began running on the track, there was sufficient evidence to go to the jury, as the law presumes the killing was due to the negligence of the railroad company. The fact that the engineer did not see the horses until after he had struck them, the jury was authorized to conclude that he was guilty of a want of care In not keeping a look out.
Benjamin D. Warfleld and Fairleigh, Straus & Fairleigh for appellant.
Chas. Carroll for appellee.
Appeal from Bullitt Circuit Court.
Opinion of the court by Chief Justice Hobson.
On November 8, 1903, appellant's fast southbound train, which left Louisville about 10 p.m., struck and killed two horses belonging to appellee south of Hubers Station. It was a rainy, dark night. The train ran through several fog banks, emerging from one at Hubers Station. The engineer in charge of the train testified that he did not see the horses until they were thrown up into the air by the locomotive. The collision with the horses broke the air tubes and set the brakes on the train, stopping it short distance south of where the collision occurred. While the engineer was repairing the damage he got wet from the rain. Although it was not raining when the collision occurred, this illustrates the character of the night. The fireman did not see the horses until after they were struck, as he was engaged in his work of putting coal into the engine. The train was running something like fifty miles an hour, and the testimony of the engineer showed that the collision was unavoidable. The fireman testified, and so did the engineer, that the collision took place about two hundred yards from Hubers Station. The fireman stated that the headlight would not light the track in a fog further than one hundred and twenty-five yards, while the engineer said that the headlight would permit him to see from one hundred and fifty to two hundred yards where there was no fog. The engineer also said that train could be stopped in from 2,800 to 3,000 feet.
The plaintiff proved by a witness who went on the ground the next morning that there was a cattle guard about forty yards north of where the horses were struck, and that he saw signs of the horses feet on the north side of this cattle guard where they had jumped the cattle guard, digging up the ballast with their hoofs. He followed these signs from that point to where they were knocked off, showing that they were running on the track. November 8, 1903, was Tuesday. On the following Sunday the plaintiff and his brother went upon the ground and followed the tracks from the cattle guard to the point where the horses were killed, the signs showing plainly on the rock ballast and the ties. The ties were indented by the shoes of the horses, pieces of the ties were knocked off and the ballast was dug out. They then followed the same signs north from the cattle guard a distance of 300 yards to the county road crossing. Beyond this point northward there were no signs, and there were no signs south of the point where the horses were struck. The witnesses testified that they could tell from the marks that the horses were running from the county road to the point where they were struck, a distance of 340 yards; and from the height of the embankment, as well as the tracks along the road, in the absence of some proof to this effect, it can not be presumed that the horses left the track and then returned to it.
In view of the fact that the horses were not seen until they were struck, and that the train ran out of the fog at Hubers Station, there was sufficient evidence to go to the jury, as the law presumes that the killing of stock is due to the negligence of the railroad company. From the fact that the engineer did not see the horses at all until after he had struck them the jury were warranted in concluding that he was guilty at least of want of care in keeping a lookout, as it would seem that the headlight permitted him to see at least 125 yards in front of the engine. The fireman testified that the headlight would throw a light about 350 or 400 yards under favorable circumstances. No effort was made to check the speed of the train, no whistle was blown or stock signal given. The train stopped about 200 or 300 yards south of where the stock was struck.
In cases of this character the plaintiff can rarely ever show when the stock were in fact seen; he must, in the main, rely upon circumstances to show negligence, and when he shows facts establishing some negligence on the part of the railroad employes the statutory presumption of negligence is not overthrown, and it is a question for the jury whether the killing of the stock was due to the want of care.
Transcribed from The Kentucky Law Reporter, Volume XXVII, Frankfort: Geo. A. Lewis Publishing House, 1905, pages 293-5.
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