The following case is taken from The Kentucky Law Reporter [Volume XXXII, pages 5-7; Frankfort: The Frankfort Printing Co., 1908].
It refers to an incident when two horses belonging to Mr. Troutwine encountered a train in Shepherdsville, with one killed and the other injured. The details of the case tell us a bit more about the town, and the potential dangers of living near the tracks.
Mr. Troutwine was likely William Troutwine who lived on Main Street in Shepherdsville in the 1910 census, and who was a livestock trader.
TROUTWINE v. LOUISVILLE & NASHVILLE R. R. CO.
(Filed November 13, 1907 - Not to be reported.)
Railroads - Action against for damages for killing stock - Instructions - In this action by appellant for damages for the killing of his stock, an instruction by the court which placed the burden on him of proving that the killing was negligently and carelessly done was erroneous, because the statute makes such killing prima facie evidence of negligence and places the burden upon the defendant when the killing is admitted or proven.
Chapeze & Halstead for appellant.
Benjamin D. Warfleld and Farleigh, Straus & Fairleigh for appellee.
Appeal from Bullitt Circuit Court.
Opinion of the court by Judge Nunn, reversing.
On the night of November 8, 1905, appellant had one horse killed and another injured by an engine and train of cars belonging to appellee. He instituted this action to recover $250 in damages.
Appellee answered, admitting the killing and injury, and denied all negligence. With such an issue formed the burden of proof was upon appellee. (Section 809 of the Kentucky Statutes and the cases of L. & N. R. R. Co. v. Simmons, &c., 85 Ky., 151, and Central Kentucky R. R. Co. v. Lebus, 12 Bush, 518.)
By the terms of the statute the injury and killing of stock is prima facie evidence of negligence and carelessness on the part of the company, its agents and servants, and in such state of case the company must pay the value of the stock killed or injured, unless it shows, by proof, that the injury or killing was the result of an accident that could not have been avoided by the exercise of ordinary care and diligence.
The train of appellee, that killed one and injured the other horse of appellant, was a passenger train pulled by two engines, and was running at a rate of forty-five or fifty miles an hour. Only two witnesses, the engineers on both engines, were introduced by appellee, and only one of them, the engineer on the front engine, professed to have seen the stock, and he saw only the horse that was killed. He testified that his train was moving south at the rate stated, that the whistle was blown for the signal about one-half mile north of Shepherdsville; that the signal post stood near to and just south of the station at Shepherdsville, which the testimony of other witnesses show was about two hundred and fifty yards north of a culvert, where one of the horses was injured and the other killed. The witness continued, using the following language: "I saw a dark object or something go past the engine, and saw a horse running down the side of the track: this was near said signal post. I did not see any horse near the bridge or culvert, nor did I feel any jar to the engine."
On cross-examination he said: "The track is straight for a distance of about one mile north of the culvert. I did not sound the stock alarm or ring the bell that night for any stock near Shepherdsville. When I saw the horse it was about even with the window of my cab and was running by the side of the track in the same direction I was going; it was just north of the signal post, that is about 250 or 300 yards south of the culvert I could not say whether it was a horse or not that I saw just in front of the engine; I do not know whether the engine struck it or not when near the signal post."
The proof, without contradiction, shows that it was a bright moonlight night; that appellee's track was straight for a mile north of where the horses were killed and injured; that there was no alarm whistle blown; that there was a fill which begun near the depot and ascended to about fourteen feet in height at the culvert. One witness testifled that he saw the horses on this dump in the vicinity of the depot five or ten minutes before the train passed. Many witnesses stated that they saw, the next morning, fresh tracks, leading from the point where the horses had been seen by the witness referred to. showing that the horses had run very fast on the dump and to the right of the track, until they came within fifteen or twenty feet of the culvert, and one jumped off of the embankment and the other entered upon the track, as shown by the disturbed condition of the ballast and blood on same from that point to the culvert where the horse had been knocked off to the right of the culvert, and fell into a public passway under it. There was no testimony given by any one in charge of the train that any lookout or diligence was used upon the occasion to ascertain whether the stock, or any stock, was upon the track, or that any care or diligence was exercised to save the stock from injury or death.
The court, under the facts proven, instructed the jury as follows: "If the jury believe from the evidence that on or about November S, 1905, the defendant, its servants, agents or employes carelessly or negligently ran its locomotive or train of cars against or over plaintiffs mare or mares thereby killing one or injuring one, they should find for plaintiff. Unless they so believe they should find for defendant."
Then defined ordinary care and negligence and gave the proper instruction on the criterion of damages.
The instruction above copied is erroneous. It placed the burden upon plaintiff to prove that the killing was negligently and carelessly done, when the statute makes such killing prima facie evidence of negligence and places the burden upon defendant when the killing is admitted or proven.
On another trial the court will instruct the jury, in substance, as follows: That they should find for plaintiff the reasonable value of the horse killed and an amount sufficent to indemnify him for the injury to the other, unless they believe as in instruction No. 2.
No. 2. The court instructs the jury that it was the duty of defendant's servants in charge of its engines to have kept a lookout for stock upon its track, and after its discovery to have used all reasonable precaution, consistent with the safety of the train and the persons thereon, to have avoided injuring the stock, and if the jury believe from the evidence that defendant's servants exercised ordinary care and diligence in performing this duty, and notwithstanding this the stock was killed and injured, they will find for defendant. (Kentucky Central R. R. Co. v. Lebus, 14 Bush, 518; L. & N. R. R. Co. v. Brown, 13 Bush, 475; L. & N. R. R. Co. v. Jones, 21 Ky. Law Rep., 749; L. & N. R. R. Co. v. Kice, 22 Ky. Law Rep., 1462; and I. C. R. R. Co. v. Gholson, 23 Ky. Law Rep., 2211.)
Appellant offered an instruction, which was refused by the court, embodying to some extent the views herein expressed. The court was correct in not giving it as it was prepared, but it should have prepared or had one prepared in proper form and have given it. (L. & N. R. R. Co. v. Harrod, 25 Ky. Law Rep., 250.)
The instruction given by the court defining ordinary care and negligence was correct, however, the language used differed somewhat from that approved by this court in the case of L. & N. R. R. Co. v. Rhoads, 28 Ky. Law Rep., 692. The difference between the instructions is not material. In the case above referred to, this court copied all the instructions given beginning with No. 2. to show that the alleged error in instruction No. 1 was cured. This court's attention was not called to nor did it consider the language used in defining ordinary care and negligence.
For these reasons the judgment of the lower court is reversed and cause remanded, for further proceedings consistent herewith.
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