Death of William Sanders - 3 Jul 1903

On the evening of 3 Jul 1903, William Sanders was making his way home from a trip to Louisville, and had likely just crossed over Pond Creek in the approach to Medora when he came upon the railroad tracks recently laid by the Louisville, Henderson and St. Louis Railroad Company. South of here these tracks would pass through western Bullitt County. This was a new line, and no trains had yet used it to his knowledge, so he wasn't expecting to meet one.

However, the company was running its first train over the tracks that very evening.

The next morning's Courier-Journal newspaper reported, "William Sanders, one of the most prominent farmers of Bullitt County, was struck by a special train of the Louisville, Henderson and St. Louis railroad, traveling at a high rate of speed, and killed instantly. The accident occurred at the railroad crossing on the road to Louisville, about three miles of Orell Station, about 8 o'clock last evening. Sanders was returning from Louisville when the accident occurred. He was knocked twenty-five feet away from the track, his wagon was wrecked and his horse killed."

In the court case that would follow, it was reported that the train engineer failed to provide signal bells or whistles to warn of its approach to the public road that crossed the tracks as he was required to do. Sanders, who was 73 years old and likely hard of hearing, likely never knew the train was approaching in the near darkness until just before it struck him.

His property along Weaver's Run was left to his second wife, Myranda Sanders, and his five children, Melissa Vaughn, Joseph Sanders, Aretta Griffith, Peter Sanders, and Ethel Sanders. Read his will on another page. You may view a plat of his land division by visiting our T. C. Carroll plats and searching for image #67-281.

The family brought suit against the railroad in Bullitt Circuit Court for his death, and on 9 Apr 1904, a jury composed of John R. Lee, William Collings, James Hall, W. L. Harris, J. T. James, Lawrence Bishop, J. D. Hough, W. D. Ellaby and W. T. Hall returned the verdict, "We the jury find for the plaintiff in the sum of $3,750."

The railroad appealed the verdict to the Court of Appeals on three separate grounds, as described in the transcription below. The Appeals Court rejected all three, and affirmed the lower court's decision.

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Under Civ. Code Prac. §73, providing that an action against a common carrier for personal injuries must be brought in the county in which the defendant resides, or in which plaintiff is injured, or in which he resides, if he resides in a county into which the carrier passes, an action may be brought against a railroad for injuries at a crossing in the county in which the plaintiff resides where the carrier has a track extending through that county, even though trains have never been operated on the track.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, § 50.]

2. SAME-INSTRUCTIONS-SIGNALS AT CROSSINGS.

Under Ky. St. 1903, § 786, requiring railroads to give warning signals at least 50 rods from the place where the road crosses a highway, and section 466, declaring that a person injured by the violation of any statute may recover from the offender such damage as he may sustain, it is proper in an action against a railroad company for injuries received in a crossing accident, to charge that it was the duty of defendant's servants to give reasonable notice of the approach of a train to the crossing, and that failure to do so was negligence, and it was not error to refuse to modify this instruction by a statement that it was the duty of the injured person to stop, look, and listen, before going upon the track.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 12012, 1208, 1210.]

3. TRIAL-IMPROPER ARGUMENT-CORRECTION OF ERROR.

In an action against a railroad company for injuries received in a crossing accident, plaintiff's counsel in argument handed his watch to one of the jurors, and took hold of a string attached to some object and undertook to demonstrate how often the bell cord could have been jerked in two seconds. The court admonished counsel in the presence of the jury that it was his duty to argue the testimony as adduced, but did not directly tell the jury to disregard the attempted demonstration. Held, that in view of the admonition of the court the error, if any, in allowing the argument, was not cause for reversal.

Appeal from Circuit Court, Bullitt County. "Not to be officially reported."

Action by William Sanders' administrator against the Louisville, Henderson & St. Louis Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Helm, Bruce & Helm, for appellant. Bennett H. Young, for appellee.

NUNN, J. This is an appeal from a judgment of the Bullitt circuit court for $3,750 against the appellant for the killing of appellee's intestate. The deceased was killed at a point where a public highway crossed appellant's track. He was driving along in a spring wagon, and, when on appellant's track, a passenger train which was running behind time and very fast instantly killed him and his horse. The appellant concedes that it has no grounds for a reversal on the evidence, and asks for a reversal for the following reasons: (1) The court erred in taking jurisdiction of the defendant, over its objection. (2) The court erred in giving and refusing instructions. (3) The court erred in allowing misconduct on the part of appellee's counsel in his concluding speech to the jury. We will consider these questions in the order recited.

It appears without contradiction that the deceased was killed in Jefferson county, that he resided in Bullitt county, that the summons was served upon one of the chief officers of appellant in Jefferson county. It is also conceded that appellant owns a right of way and roadbed into and possibly through Bullitt county. It executed a mortgage to secure some bonds which were recorded in Bullitt county, and described its line of road as "beginning at West Point in the county of Hardin, and extends into and through Bullitt and Jefferson counties," but, prior to this injury and the institution of this action, it had never run an engine or train of cars onto its roadbed in the county of Bullitt, and, by reason of this last fact, appellant contends that it was improperly sued in Bullitt county; that court not having jurisdiction of it. Section 73 of the Civil Code of Practice, so far as it applies to the matter before us, reads as follows: "An action against a common carrier for an injury to a passenger or other person *** must be brought in the county in which the defendant *** resides; or in which the plaintiff *** is injured, or in which he resides, if he resides in a county into which the carrier passes."

The appellant contends that the Code means by the words "carrier passes" is the operation of the trains, and as it had not operated a train in the county of Bullitt, that court did not have jurisdiction of it. We cannot agree to this construction of the Code. We are of the opinion that the word "carrier," as used in this section, applies not alone to the operation of trains, but it applies to the appellant as a common carrier. Suppose the appellant had owned the right of way, and had graded its roadbed from Henderson to Louisville, and had partly placed the ties and rails thereon, and was preparing to run engines and cars for the purpose of carrying persons and property to effectuate the purposes for which the company was organized. Could it be reasonably contended that under such circumstances it was not a carrier in the sense that word is used in the Code? Would it be contended that every person injured upon the line by the corporation or its agents would be compelled to sue appellant at its home office simply because it had not run a train of cars over its roadbed? We think not. In our opinion, as the appellant at that time owned a right of way and roadbed, which extended and passed into Bullitt county, this had the effect to make it, the corporation, a "carrier" which passed into Bullitt county in the sense and meaning of the Code. The appellant complains of the following instruction: "The court instructs the jury that it was the duty of the defendant's servants in charge of the engine to give reasonable and timely notice of the approach of the train to said crossing by ringing the bell or sounding the whistle of the engine continuously or alternately until the engine reached the crossing, and a failure to do so, if they so failed, was negligence." This instruction follows the language of section 786 of the statute of 1903, except that the statute says that those in charge of the train must begin to give these warnings at least 50 rods from the place where the road crosses the highway. Appellee's counsel offered an instruction embodying this portion of the statute, and upon the objection of the appellant the court refused to give it. The appellee was entitled to it. This statute was enacted for the benefit and protection of persons using a highway, as well as those riding on the train. By section 793, a penalty is imposed for the violation of this statute. By section 466 of the statute, it is provided: "A person injured by the violation of any stature may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture be thereby imposed."

There was evidence introduced upon the trial from which the jury might have concluded that the failure to ring the bell or blow the whistle upon that occasion by appellant's servants, caused the death of appellant's intestate. The appellant cites the cases of Paducah & Memphis Railroad Company v. Hoehl, 12 Bush, 41, and Chesapeake & Ohio Railroad Company v. Gunter, 198 Ky. 362, 56 S. W. 527, as sustaining its position. In the first case, the child was not attempting to cross at a public highway. nor had section 786, Ky. St. 1903, been enacted at that time. In the second, or Gunter Case, the lower court had given an instruction to the effect that if the jury believed from the evidence that the crossing was an exceptionally dangerous one, it was the duty of the defendant to keep a watchman at the crossing. The court in that case had not given an instruction like the one given in this case. The court also instructed the jury that it was the duty of Sanders in approaching the crossing to exercise ordinary care for his own safety, and if the jury should believe from the evidence that Sanders failed to exercise such degree of care and was thereby injured, then the law was for the defendant, and the jury should so find. The appellant contends that the court should have in substance told the jury that Sanders in approaching the crossing should have stopped, looked, and listened for the approach of a train before entering upon the track. This court has frequently in cases like this, approved instructions similar to the one given by the court, and condemned the modification as asked for by the appellant.

The substance of the third and last ground assigned for a reversal is this: Appellee s counsel, in the closing speech to the jury. handed his watch to one of the jurors, and took hold of a string attached to some object and undertook to demonstrate how often the bell cord could have been jerked in two seconds, and claimed that it could have been jerked 10 times. To this appellant objected. The court then admonished the counsel in the presence of the jury that it was his duty to argue the testimony as adduced, and instructions given by the court, but did not tell the jury in so many words, to disregard the attempted demonstration made by counsel in their presence. There had been some attempt while the engineer of the train was on the witness stand to get him to state how often the bell rope could have been jerked in the length of time named, and counsel for appellee was discussing this when he attempted to make the demonstration referred to. If an error it was of but little consequence, as in our opinion the admonition of the court given at the time removed from the jury the evil effects of it.

For these reasons, the judgment of the lower court is affirmed.

The Southwestern Reporter, Volume 92, May 9 - June 20, 1906, pages 937-939.

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