
    Illinois Central Railroad Company v. Holmes.
    (Decided October 31, 1922.)
    Appeal from Graves Circuit Court.
    1. Railroads — Negligence—Damages.—One who is upon a street crossing in a city and is struck by a -moving train in the dark, may recover damages if he was not guilty of suck contributory negligence as but for which, he would not have been injured.
    2. Railroads — Negligence—Damages.—Evidence examined and held there was sufficient proof of negligence upon the part’ of the railroad company to take the case to the jury and 'to sustain the verdict.
    ROBBINS & ROBBINS, R. V. FLETCHER and ‘ TRABUE, DOOLAN, HELM & HELM for appellant.
    HO.LIFIELD & MCDONALD for appellee.
   Opinion op the Court by

Judge Sampson —

Affirming.

Appellee Holmes, on December 12, 1913, while on a grade .crossing in the city of Mayfield, Kentucky, was struck by a passing train and injured in many parts of his body and especially in his left foot and leg, so that said foot was necessarily amputated, and he brought this action in the Graves circuit court against the Illinois Central Railroad Company to recover damages for his injuries, and was awarded $500.00 on a jury trial. The railroad company appeals from the judgment entered upon that verdict.

It is the insistence of the railroad company that while the scintilla rule requires the submission of a case like this to the jury, yet if the verdict is flagrantly and palpably against the evidence the court should set aside the verdict and grant a new trial. C. & O. Railway Co. v. Johnson, 151 Ky. 809; Dailey v. Lexington and Eastren R. R. Co., 180 Ky. 668. There are a great number of cases in Kentucky to the same effect. That this is the correct rule cannot be gainsaid. Appellee Holmes insists that there is abundant evidence 'to support the verdict.

Appellee Holmes lived at Wingo, Kentucky, ten miles south of Mayfield, and thirty-three mile’s from Paducah. On the day of the accident appellee bought a round-trip ticket from Wingo to Paducah and took a train for the last named town. After arriving at Paducah he attended to some business, bought some cigarettes and then a friend said to him, “Let’s go over and buy a drink;” he took one drink of whiskey in the forenoon and then ate dinner. About three o’clock in the afternoon he took another drink. Both of these drinks appellee says were small. While in Paducah he purchased for a friend a pint of whiskey and put it in his hip pocket; he also bought four quarts of whiskey which he put in his handbag for two friends; about 4:30 p. m. he boarded the train at Paducah for Wingo, carrying with him his handbag. About the time he arrived at Mayfield, fie observed tfiat fiis bag was gone and fie began to look through tfie car for it; fie made inquiry of different passengers to know if they had seen it, and some one. or more of tfie passengers told him that a man dressed in corduroy took fiis grip- and left tfie car about tfie time tfie train pulled into Mayfield. On receiving tfiis information appellee left tfie train in searcfi of tfie man dressed in corduroy. He looked in a number of automobiles to see if fie could find fiis fiandbag and then went to tfie station and otfier places looking for tfie man wfiom the otfier passengers in tfie coach, described as carrying’ away fiis fiandlbag. He returned to tfie coach one time and made a more diligent searcfi for fiis grip, thinking it might be under tfie seat, and after a futile effort fie again inquired of tfie passengers if tfiey knew who it was tfiat took fiis grip, and then asked for a more definite description of tfie man. 'This was again given, and appellee was told tfiat tfie man carrying tfie grip went in tfie direction of a certain building not far away. Tfie railroad tracks were on every side and tfiis building Avas in tfie yards. He went to this building but did not find tfie man dressed in tfie corduroy or appellee’s handbag. Tfien he started in another direction, crossing tfie yards, hoping to find the culprit. In tfie meantime fie met several persons Avfiom fie knew and told them about tfie loss of fiis fiandbag, and asked concerning a man dressed in corduroy. In doing tfiis fie conversed with a number of persons in and about tfie railroad yards. While fie was making tfiis searcfi tfie engine which was pulling tfie train on Avfiicfi fie had been riding had run down the tracks for s'ome distance and got on to a passing track to come back beyond where tfie train stood and connected a poultry car and shifted it on tfie yards. Appellee had reached tfie grade crossing of Water street over one of tfie tracks of appellant. He was intending to go further south in searcfi of tfie man with fiis. suitcase, but tfie yards were so dark at tfiat point at tfiat hour in tfie evening tfiat fie could scarcely see where fie was going, and so after barely crossing tfie intersection fie turned on fiis heel, glanced toward Pryorsburg and was going back in tfie direction from which fie had came, when without warning, as fie says, fie was suddenly and unexpectedly struck in tfie back and shoulder by tfie pilot beam on tfie front of tfie engine which knocked bim almost senseless, fiis feet being tfiroAAm rather under tfie train and fiis body away from tfie train. In, falling one of his feet was caught under some part of the train and so mashed and lacerated that it was necessarily amputated. He also received injuries in his back and side and in his head and other parts of his body, and for some time after the injury he was practically unconscious. The pint bottle of liquor in his hip pocket was broken and spilt, and this gave a strong smell of whiskey to the crowd which came up immediately to see what had happened. Appellee was taken on a train very soon after his injury to a hospital at Paducah, where his foot was amputated and he was otherwise treated and cared for. According to his testimony he was wholly unaware of the approach of the train to the grade crossing of the street on which he was standing at the time he was struck. He says there was no signal given either by bell or whistle and that he did not see any light; that is was then very dark at the place he was traveling and that the train was going about tweney miles per hour. Evidently a large electric light which usually burned at that point at certain hours in the night was not on, if his evdence be true, for if so it woud not have been dark. He is corroborated in this by some other witnesses who spoke of the darkness. Soon after the injury of appellee a great number of pers'ons gathered around him and they had to strike matches in order to discover who the injured person was. Other witnesses also testified that there was no whistle or ringing of the bell by the train on its approach to the intersection. On the other hand, there are witnesses who testify that the bell was ringing and that the whistle sounded about the time- it struck appellee. It was the duty of the train operatives in charge of the engine which struck appellee to keep a lookout ahead for persons on the public crossing at the place where appellee was struck and to control their train and so manage it as not to- come in contact with such persons and to ring the bell and sound the whistle continuously or alternatively for some rods back until the crossing was passed. This,' according to plaintiff’s evidence, was not done. He had no warning whatever of the approach of the train. Of course, upon the company’s behalf the evidence tends to show that the electric light was burning at that crossing; that the bell on the engine was constantly ringing when it approached the intersection and that appellee was so drunk that when the engineer saw him he was reeling from side to side and unable to walk straight. We think a large part of the drunkenness charged against appellee arose out of the fact that he smelled strongly of liquor when the crowd gathered immediately after the accident, for a pint of whiskey had been spilt on him. He had during the day taken two drinks, hut that was not enough to intoxicate him at that hour in the evening. Besides that many persons who met and conversed with him after he alighted from the train in search of his grip positively state that he did not act like a man under the influence of intoxicating drinks and that they did not'smell whiskey or notice anything in his conduct or speech which indicated he was not normal in every respect. Some of these persons had just conversed with him a few minutes before the accident.

All these matters considered, we are constrained to the view that there was not only evidence sufficient to carry the case to the jury, hut ample evidence to support the verdict.

Judgment affirmed.  