Citations
- 73 F. Supp. 348
Full opinion text
SWINFORD, District Judge.
The motion for a new trial should be overruled. The plaintiff’s brief cites the following cases on which he relies, but I do not believe, in the light of the Kentucky decisions, the Court erred in sustaining the defendant’s motion for a directed verdict at the close of all evidence: Sims’ Adm’r v. Chesapeake & O. Ry. Co., 140 Ky. 241, 130 S.W. 1081; Stuart’s Adm’r v. Nashville, C. & St. L. Ry. Co., 146 Ky. 127, 142 S.W. 232; Louisville, C. & L. Ry. Co. v. Goetz’s Adm’x, 79 Ky. 442, 42 Am.Rep. 227; and Louisville & N. R. Co. v. Clark’s Adm’r, 105 Ky. 571, 49 S.W. 323.
In the Sims case a witness definitely identified the deceased by his voice about thirty • minutes before the train passed the crossing and testified that he was going toward the crossing where he was later found dead. His body was some thirty-five feet from the crossing mangled almost beyond recognition and the court found as a fact that there was no question but that he was killed by the train. The conclusion that he had been killed by the train was based on positive obvious facts. Cinders were “scuffed” up as if something had been dragged over them from the road. There were scraps of hair, blood and clothing on the ties. The plaintiff also proved by several witnesses that the train gave no signal of its approach to the crossing.
In the Stuart case the deceased’s body was found near the railroad tracks of the railway company at a street crossing in the City of Paducah by the conductor of a street car. The discovery was made as the street car was crossing the railroad tracks following a delay caused by one of the railway company’s trains crossing the street. Plaintiff quotes in his brief th