L. & N. R. Co. v. Jones, Rockcastle, 1899

LOUISVILLE & N. R. CO. v. JONES.

COURT OF APPEALS OF KENTUCKY

52 S.W. 938; 1899 Ky. LEXIS 348; 21 Ky. L. Rptr. 749

October 14, 1899, Decided

PRIOR HISTORY:  [**1]

Appeal from circuit court, Rockcastle county.

Action by M. R. Jones against the Louisville & Nashville Railroad Company to recover the value of a horse killed by one of defendant's trains. Judgment for plaintiff, and defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: Breckinridge & Shelby, for appellant.

Williams & Williams, for appellee.

JUDGES: HOBSON, J.

OPINION BY: HOBSON

OPINION

 [*938]  HOBSON, J. Appellee filed this action against appellant to recover the value of a horse alleged to have been killed by one of appellant's trains. The killing of the horse was admitted, and under section 809, Ky. St., the burden of proof was upon appellant to show that the killing was not due to its negligence. The chief contention is that it successfully did this, and that the evidence offered by appellee was not sufficient to warrant the submission of the case to the jury. The engineer of the train testified that, the first he saw of the horse, it and some other horses were running along the right-hand side of the train, about 40 feet in front of the engine, and just before he struck it the other horses pressed it in towards the train, and the bumper of the train hit it and knocked it off; that the train was running about 25 miles an hour, and could not have  [**2] been stopped in less than 150 yards; and that the horse was so close to the train that it was impossible to stop or check it, so as to avoid the injury. On cross-examination, he stated that he did not know, and had no idea, how far the train ran, after he first saw the horse, before striking it. He and the fireman both testified that the night was dark, and the fireman stated that the train might have been stopped in 75 yards. These were the only witnesses offered by the appellant. The appellee then introduced proof showing that there were several other horses in the field besides the horse killed, and appellee's saddle mare, but these two only had on shoes; that the next morning the tracks of these two horses were found where they had gone over some bars into the meadow through which the railroad ran, and walked along on the left side of the track, close to the end of the ties, a distance of 490 feet; that at this point they both started to run, the saddle mare leaving the track, but that the other horse ran for a distance of 40 feet on the end of the ties; that it then ran upon the track between the rails, bearing at first to the left side of the track, and then, after a little,  [**3] to the right, having a time or two gotten one foot over the rail; that it could be seen that the horse was running by the print of its shoes in the dirt and on the ties, and the distance of the steps; that the track at this point is perfectly straight, and there was no obstruction to the view; and that the horse ran upon the track 420 feet before it was struck, making, with the 40 feet it ran before it got between the rails, 460 feet. On this evidence, we cannot say that the jury were not warranted in concluding that appellant's servants in charge of the train might, by proper diligence, have seen the horse in time to avoid injuring it, as it is not claimed that there was anything to prevent them from keeping a lookout. The testimony as to the value of the horse by the appellee and his neighbors, who knew it, was competent, although they did not profess to be experts. Judgment affirmed.