xt73bk16mf8w_455 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [322a] H.C. Boatright v. L&E Railroad, Letcher Circuit Court text [322a] H.C. Boatright v. L&E Railroad, Letcher Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_45/Folder_2/5372.pdf section false xt73bk16mf8w_455 xt73bk16mf8w COURT OF AP?EAZS OF KHHTUCKY.

Lexington & Eastern Railway Company, _ Appellant.

V. 7 BRIE}? .3037: .‘..'??? '1 Lisl'ii’l‘. .
H. 0. Beatright, Appellee.

- ~ - — - — — n o 0 o w ~ ~ — ~ - — ~

We desire briefly to reply to the Brief filed in
behalf of the A pellee, confining what We have ﬁe say to
Agpellee‘s summary of the facts anﬂ to his eiﬁations of law.

THE FACT .

COUHSQI ior legallee seem to treat the @roof as
shaving guiﬁe canelueivelg an& as a matter of course that . -
plaintilﬁ‘s nrowexty Suffereﬁ serioue éamage and that this ‘
éamage, 3% a fair cum utmﬁion, amountud to at least TWO
nnnﬁred Dollars (5200.00) , the amount awsezsed by the ' "
1H :93" .

A fair and candid exuminutimn of the transcrijt
of the eviéence, however, will indubitmbly establish the faeﬁ : '
ﬁhat ﬁhe Verﬁict was erceenive. The plaintiff's proyerty,
acaorﬁﬁug $0 his own claim, containeé a bare fraction over ten
acres (frunscriet of EViGGﬂCQ, p.ll,) mnﬁ treating hie own
appraieement of the value of thie treeﬁ 8S GOMpetent, its
m Kimum value ﬁiﬁ not exceed One Thjusanﬁ Dollars ($1000.00), ‘
ygijo the lurgn preponderance of the teetimony, both connetent
in” incanyetent, put the maximum value at not exceeding Eight

 r ‘ . u
...2 __
l—lunc‘azcm‘s. 33011533653 (I.,BROOJBO). 01” "this total valuminion Sum? Hum’ired
' 3:11.316. 3‘. ft}; to ls‘ive 33.111143 rec": ems} fifty 3011:3353 was: maﬁa up of 1:310
“33:23.15? 3.1133 33.316. iLL;:1"{33721313333333 on the 151163., 310310 0 1311:1031}. were 133133533 1:361
:33:: 1313123151. in any 3753;; 33y the alleged overflow from "(ﬁle river.
{2210 or more Of “the 333113310143903 mama}. 31:3 ﬂ. 3133.32.33 "65.236 0111;)“ watsh
o:;:3;33_z,rrr:ii in the LL31“: ;3 01"" 152.136? 1301‘ 3033313153: 3‘31?) :‘:}.vrer 9.316. .‘.3..ny nggg:
3.3::-31:1..Ioen tha aﬂge 031‘ the river sand ‘the 6012:5113 g; 310ml, 'L'-1h :'.-338.538 the
“lfl 3.08:3 Gi‘ 31312.33. 3'L'tii‘f '5: 93161053:sz 1552,3361: 1:11;: on the 01'3le 3316.0
3 033’ this; 6:.3313L-ty' .»’..ung 53,316. 3.1321519 or 11mm 03? it V..-2:38 ﬂaws: "to any
0V (33371333: 01" 17515331- Eéﬁiiiﬂéi the 0:72.931: in its: 313.0531; :’L‘1’a'2r'LLL-zia'2'31e 5:5.-:—
;::301; 3.333: 1113.11: -=.3‘§..::Li.rL-L:?.ii’, ELOE’JL‘LVLTE‘Y, :i;":‘Lsizzz‘erz (30311.6: 3103'; }L:‘Lve been
. *V makeonﬁm ().L'Lea-jzzszlf 2:13:50 :3;.L‘:;:‘octeﬂ ”33;; as fur-:3 “2331-7:- river
- :3116 1122“,»: ..::531':2.11-:;0 a): the ..vzlxhzgsum “M33275: ths'z’t "$3103.: m’Lbiz'e :111-(3:3.
aii’mLVb-OG. ":3,." "the: 3.335333. (201116 3103.; have been more $1152.31 oz'LeuL-3:‘L;:{:"L’L‘i;h
_: ﬁo 021{3--.=’;:33:r'i;733. .:i 5123. 43.2.3310. The LL13 "533521.335 :ezcluaingtr the im-
:33: r '».?013’3313'35:,.thz: grainy ta 5333-35231'L11J 0:311 j>;v;>\:):ff,¥;:3.s not 155.7“;"311
., 03:533- .f:‘:?_;.'*t;.,r ..3; 01152353 (.,SSDML‘U) 3::“): 3.22370 L333, if thn 12:3,::L‘ovomen'ts
be 3.31.131336'3LLG, thaw 031335.36: Value (1:113. 3th :3:-:90le Line iiunglterﬁ 3301153132:
(“$100.00) p372;- :’L.L":1‘e. I31 933/0119? {353.550, the 13.336. :‘L:’1§:L1‘<.=€~. Was.)
7 not worth <'23:<39“I.L:-.:abion :31; '3;-Mich 33'§_:.;.in’t3'.i‘ii' 33:343. given this: ":3:‘0ja;:»c3rt;,-' in 3301* as—
‘ ‘,nssmmzt Was 9720111581.: 13,37 ...1-1r; 0331:3333, 35hr: (10323321431333'9 :‘:vmxstl 5321:3173
'LharL 15253.5; :".-'.L‘tjxrz: ‘?;::‘::.L',:'{; 03’! 1.23.316. was valuntnri.“Lg; Lit-“tot big; 321$an-
. 1221;1” ;t‘ur mutation 3303‘ the. yew“ 111?. (:.“-3 9300.00 53.31:? 10:: ”aha: year
7 1 1 at .,;ilOOADO and. in: the (’.L 15:10 :.:L‘i; u350.00. i233::-:2.tﬁ.1'3.=;; this
> f".V-.T«’{‘m.1 53.5; true, am". it ‘L’J:'.‘-..:L3 bilinzd upon the county 1‘::cr31-L‘1.5‘5, the
-. mwi 12:3 V5.2,'j.:::.-gtion 033’ ‘bhz: 15:136., anon-3113.335 to :{319111‘813 ff's own
* Stat-32.193113, ‘:rr-vious to the: trial WELLS -.;5115;h ii; is 11:11:11.5:1306. 1.131111%; “25221;; “3007;: 1111:5311: 11.113 :.1. _:soigz‘i;
.1- 1 131:1 11.161 1;?11131 i1: {;119- (1:111:71 112211.111. 3122”?) ii: is to be obn-
11301171511151 13.11.1113 the (3,231,111.36- in the: 111101111; 11:13 1.1.1.1111}: “.33-11,111 xiv 131x: struck
' 13.110 1:11.121 63.31:? 313761121. 21.311161: to c1111“; in 1.1.0.1112: 3: 35.11.1138 11:11:57 (‘15-:—
;$.1"loz::“L‘-r:1rﬁ. 11.-1:251: not 1.1631101” 13;? "the {3.1.2112813321113131'1.on of the 11111111011161. fill
”mat r1. VOL-i.- 13111311113 (52318133311139 :':-2.11 ;‘L 1531.13.11»: 1:111:221gfgic, :'Li' there L139;
:1.: 1.1;, (“101133 114.112; na:i;1.z.r:ﬂ.7.;};1 0:1: 51:51.11; .11-:11‘:.2.<3‘L; 1,113.11. “..3,: 1:<:<.:r112:1‘1; 1’01: 1311? 51.1-
' 11:; '11::‘3S211511g; (301,113,215111. 1:11:31”: (33”; 3 {13.31.6370 11%; 2‘1, 1‘3?! :31“ 1:11:31y1-3i <31: 116.1111
71:111.]. $111131; 111-(12:0 am: (331‘ 1.3-111151 the 3111.11121131‘51 1 i116. his; 011.111.11.111].
11.1. 16.1. to have 101:1; :.:igrht. It is; tﬁé‘zis‘; - 1331111151; 15311.0 1H." 01' 5.111011111109
i431: ::qzrcl 130 1371161 {1113;111- 1311’ reflect 13.021. “1.113111 31111.11; 1.113311110171163 in mind,
it if»: out 132' 13116 rpmstion,‘t.1.11<‘ier tho facts: (;.11-1311'1322133?15.111111 6. in 'thiﬁ 0111.11: <3 ,
1L: c 111.201.1035: 123112.11; 1116: 111311.13 (wwcwon oi” “3311.115 3.2.1.2. i'.1._1‘c:1.€=. fi 11, :13 a
.‘ -L can 131.310 111111-3111111 112.1- :ifiit;;1 (€7.50) yarﬁs 03:21:10.1..16 21.11.511.31; from
1117.:111'1.31113111":2: 11201131111111ng{was i 11:37.2131111: 1211314.: 1113.16 L311;- 311 ::_-1:11:01 «C21‘VCI;"JC10W§~310
1.',1:1,:11:..1:'1.:1;;2: oi" LLE: 13110 33:11 1113;:1. 7311161 V1156; 0v 3:131 11.113111. 11316. 13:33:»);11311:131:11]. 13]
n tides :'er 32163 Kort}: ;30113: 1ch3: during; the years 7.93.2 1111611913
331.1115; 11.0430111112 1011 the (712-1231.rig:c, ii" any, 30 11321:;- 31531111311361":1" lama,
12.221113211131113 any :‘:—31.31111; to 01113531110 01: more ELCVGIL’Gi‘tiOUS cireurmtonces.

 , .
_-4-_
These heavy and protracted rains and the Conseqnont high water
in the river are an obvious and all~sufiicient explanation of
the trouble here complained of.
TH? SAT.

In su port of their argument for the Appellee, counsel
for Annelise refer to but three decisions, two rendered by the
Court of ;ppeale of Kentucky and one by the Supreme Court of
Illinois. we have eramined the case of Ohio a mississinpi
Hy. Co. v. Ramey, 139 Ill. p. 9; s.c. 2? $.3. lop. 1087, and
while it seems to decide the point to which it is cited by
counsel ior Annelise, yet we do not find that it differs in any
material respect iron cases like hadisonvillc, 5 a T E Co. v.
Thomas, 140 Ky. 143; s.c. 130 ?.M. Q75, heretofore decided in
Kentucky.

The case of Ill. Cont. L; v. idem, 76 3.2;. 35:2,
deciﬁod by this Court in 19mg, involved damage to the plain-
tiff Ben‘s land by reason oi the construction of a railroad
embankment out into the Ohio hivwr. This Embankment or pier:
was built in order to accommodate a ferry by means of which
the railroad crosses the Ohio River about a mile and a quarter I
above the lands of Bom, the Annellee. We confess there is some
tort oannalogy between the Ben case and the nrescnt case, but

' the facts and physical conditions are so manifestly different i
that the decision of this case cannot fairly he made to depend
upon the determination of the 30m case. In other words, the I
Bom case turned on its own peculiar facts and did not involve ‘
the announcement of any new rule or principle for tho determina- ‘
tion of claims such as this.

There is another point inVulvod in the Bom case
Which might Well be applied differently here. Said the Court -

 :7: . ”‘:"553333; 1 ' "»
,1_. i. ' “-5‘"
”She rule that has been laid down in SeVeral cages that,thcre
the ylaintiff’g nviﬁenue leaves the mind in Count aﬁ to whcﬁher
his injuzy was ﬂue to the ﬁefenéanﬁ’w act 01 to some othvr cause,
ﬁhore can bc no rocuvery, cannoﬁ be appliea where thiﬂ Foubt
$rises upon ﬁhl preof énﬁroducad by thr ﬁefenﬁanﬁ."
ﬂow, in the cane at bury it 18 insiaﬁeﬁ thmi th: Baubﬁ
RS ta whwther ﬁhw injuxy aouplainaﬁ of was ﬁne ﬁo any negligence
of ﬁhe Gefeﬂéauﬁ axiseﬁ wholly Out of éhe 3300f oifnraﬁ in behalf
of ﬁhw plaintiff. The wroof a dnca& by the ﬁefonﬁant did mat rc-
move Shah ﬁoubﬁ nor aid it in any ﬁegrve Strcugthon the plain»
ﬁiif’g Gaga. ﬁance, the same r asaur which 19& ﬁhe “Qurt in the
Ben G383 ﬁo reinsa to amply this principle Goénoﬁ exiﬁt hare aad
for thiS reason we iﬁmist %huﬁ ﬁhe court below eyraﬁ in ﬂat tak-
ing; “the cams; from “8116: 313:3“
The Dﬁhwr ease oiteﬂ by the hypellae, viz: 301293 V.
C. E. U. & E. Po 3y.00., 132 $3. 52‘; 9.0. 153 S. I. 742, was a
' perSogml injury aaae which rnGOgnizes and ap5119: cerﬁain prin~
Ci 103 in the law of nailigonue resnncting which we nﬁkQ no Sig»
% nutw. She Beimwr ease mayeover sites and rangfirms oﬁhex ear—
E 1102 Kentucky cases, more vanccinlly ﬁh. 0390 Cf Intgon v. $0 In
E & K. r ,"‘ ﬂ
& 3.060., 137 Ky. 01?; 3.0. 120 :.:. 14b. Eatv oath of ﬁh9se ‘
‘ Gav s rnuognize the vlomnntwry ﬁnaﬁrine contenﬁed for in our
01':?._5;:i.11:21 grief 52115;. again urged hare, viz: - ”Elm-aft a whim:~':'.i.1-21:iz,to
Gauge i8 that Ounce Mlieh naturally 10d to uni uhich miphﬁ have
been eynneﬁod to aroduce the insult. * * * The connectian
oi Gamay anf eff at must be established."
The antire argwmvnﬁ ior thw Ampellee leaveS thy cage
hhnre we startqd insofar as the foctrine 0f pyoximate cauro is
con érnaﬂ and insofnx as the effecﬁ of that ﬁacﬁrine upon ﬁne
The chief error or fallacy under-
pr¢sent case is concernaa.
lying the argument for Appollee here seems to be that in every
case wh re the quostion of proximate cause becomes iMportant,

 \ ~
- --5--
that question must be left to the jury for determination and
cannot be taken from the jury by the Court; That such is not the
law would seem to be settled by the authorities cited in our
original brief but,if it may serve to remove the point from the
realm of ueubt,we mey be pardoned for supplementing the eu-
( I thorities reliea upon in our original brief with additional
citations.
Thus, in the case of Hummor's Executrix v. L & H E R Co. '
128 Ky. l86; 3.0. 108 S.W. 885, where the case was submitted
to the jury and a verﬂict returned for the defendant, the Court
announced in clear and unmistakable terms the prineitle which
we insist shoulo be applied here. Seiﬁ Juﬁge Hobson, writing for
the Court -
"In oroer for the plaintiff to recover he must not
only show that there was negligence on the part of the
Gefendant, but also that the injury oceurree as the
proximate result of such negligence; for he cannot
comelein of negligence on the pert of the defendant
which in no way effected the injury com leined of."
/ Again, in the later case of Goins v. Horth Jellico
wk"
Coal 00., 140 Ky. 323; 3.0. 131 S.W. 29, where a verdict was
returneﬁ for the eefendent unﬂer e peremptory instruction given by
the Court, the Court of 3*peels again declareﬁ the nrincinle
here under consiieration in the following terse language «
"Damages can be reeOVereu for negligence or
wrongful not only there the loss suifered was the
proximate result of the negligence or wrongful net.”
It is to he obeerved that the Goins case also lays
down the rule ior determining defendant's motion for e peremp-
tory instruction, pointing out that no matter when the motion
is decided, if it be maﬁa at the close of the plaintiff‘s tee—
timony, it must always be decided upon the plaintiff's testimony
alone and without reference to evidence oifered in behalf of the
defendant. The language of the Court on this point is as follows -

 _-7_-
/ .

/ "At the conclusion of the evidence offered by him,

’ the defendant moved the court to instruct the jury peremptorily
to find for it. The court took the motion under advisement,
and directed the defendant to go on with its evidence. At the

j conclusion of the defendant's evidence, the court sueteined
’ the motion, and the jury having found for the defendant, and
5 the plaintiff'e petition being dismissed, he appeals. ‘
"When the plaintiff introduces his evidence,
- and at its conclusion the defendant moves the court to
instruct the jury pcremptorily to find for it, Whether
' the motion is then determined by the court or not, it must
be decided on the plaintiff's evidence without reference
to any facts Shown by the evidence introduced on behalf
oi the defendant; for, in so far as there is e conflict
, in the evidence, the question, if material, is fei'the jury.
The ceec before us therefore must be determined on.the
. plaintiff's evidence without reference to any fact Shown
by the teetimony for the defendant."
‘»v Again, in the once of Tolin v. Terrell, 133 Ky. 210;
s.c. 117 S.?. 290, the Court of Appeals once more recorded its
eoproval of the principle here in question, Saving 4
, 5 "In order to hold defendant liuble in this case,
' ,5" ; his negligence muet have been such that, without it,
,‘ =5ﬁ >E; the injury would not hate happened. while it is true
, ﬂglg?i 5 that the question of proximate cause is ordinarily one for the
g,‘;ge W" { jury, yet, where the evidence connecting the plaintiff's
y y” injuries with the defendant's alleged negligence amounts to
' more Speculation or conjecture, no case for the jury in pre-
eented.W
The case of Burton v. Cumberland Telephone & Telegraph
Company, 118 S.W. 287, illuetr toe the grinoiplc here in question.
we quote from the Opinion in thie cute as follows ~
"The absence of the permission of the fiscal court
the not, then, the prOximute ceuee of appellant’s injuries.
If the pole fell because of defects of which appellee
know, or could have discovered by ordinary care, then it
would have been liable to appellant for the injuries re~
ceived, but, as said before, this issue he failed to maintain
before the jury. If, hoWever, the pole fell, not because
it Was unsound, but bocuuee it was broken down by the felling
of a tree, or blown down by an unusual storm - neither
of which was in the control of apnollee - than the reopen-
eibility for eponllant'e injuries Was not upon eppolleo. The
more feet that the pole was at the place there it was
situated, and e felling tree broke it off an? cuueed it to
fall in the highway, does not render the appellee liable for
unpellant’s injuries. The Windstorm anC the falling tree
were the proximate causes of the injuries accruing to the
appellant.
V ”The rule we have announced above is well stated in 29
Cyc. 496, as follows: ‘A prior and remote ounce cannot be made
the basis of an action if such remote cauee did nothing more
then furnish the condition or give rise to the occasion by

 '. A
1‘
which the injury was muoe possible if there intervened
between such prior or remote cause chi the injury a
distinct, succescivc, unrelated, and efficient amuse of the
injury. If no danger existeo in the conﬂition except be-
cause of the independent cause, such condition was not the
proximate cause.‘ Tho foregoing text is supported by a citation
of many authorities in a note by the ecitors. Assuming the pole
in question to have been such as is ordinarily uScd by telephone
congenies, one that it was reasonably safe as it stooc, we are
unable to perceive Why uppellee should be held liable because
the Windstorm blow down a forest tree near it, which, in
falling, broke the pole and threw it into the highway. The
proximate cause was the vis major, and not the negligence
of appoll so. "
In the still later case of City of Lawrencehurg V. Lay, ,.
149 Ky. 490; s.c. 149 E.H. 862, the Court discussed but die not occide
the specific matter of eviﬂence which arose in that case one invited
an application of the doctrines of proximate cause. What the Court
had to say, however, is instructive on the facts here unﬁer consid—
eration. We quote from the Opinion as follows ~
"There is much force in the argument of counsel for
appellant that the set of the city in maintaining the rope was not
. the proximate cause of the injury, as the rope did not in any
manner obstruct the use of the street or Sidewalk in the cus-
tomary manner oi their use, although, if an attempt had been
made to go from the street to the siocwalk, or from the siaewulk
to the street, at the place uh re th" rcpe was suspcnaca, it
moul&.oiier in some measure an obstruction. Qhe rule is
that to conztitute negligence in cases like this, Where con—
curring, inﬁependent causes produce accident, the injury com—
plained of must be one that, under the circumstances, might
- have been reasonably foreseen or anticipated by a person of -
oréinsry prudence to flow from m: be the natural or'probable
consequence of the first negligent act. Sydnor v. Arnold,
122 Ky. 557, 92 S.W. 289; Louisville home Telephone Co. v. Gas-
por, 123 gy‘ 128, 93 S.W. 1057, 29 Ky. Lew Rep. 578, 9 L.R.i.
1U.So& QA ind so it is orwued that as the tone was so
6 .. W ” “ _.. .. .0 L) L r... ’ . y ‘ a v. u
31490 an AOL to obstruct the customary travel, the city,
‘ in the exercise of reasonable pruﬂonce, coulo not have antic-
' ioutoﬁ that anything woulﬁ come in contact with this rope
in so Violent a manner as to cause it to become unfastened
or break, and hence shoulc not be held liable for the not
of the runaway horse that cousod the fope to break or become
unfastenod.”
Comes might be multiplied to the some purport, but
when it is considered that under the proof here it is by no means
clear that the ylointiff's damage was attributable to the con-
struction of the railroad or railroad fill but, on the contrary,

 x A ‘ ' - ,V
x; “1. I.. > »r .
_-9_-
appears to have originate& from other anﬂ distinct causes; aha
when we consider in particular that the tides in the North
Fork of the Kentucky River passing plaintiff‘s property were ex-
traordinary an& unusual aha exoeesively high, hath in the year
. 1912 ant in the year 1913; and When it is further remembered
. that the pleintiif himself by placing brush aha other ohetrue-
tions in the bed of the river, or near the bank on the Siﬁe
aﬁjacent to his nronertp, thereby directly interfered with
the flow of thv water, impeding anﬂ diVGrting the natural ‘
current, it 18 plainly just as probable that the injury, if
any, to his land was due to his own acts as to any acts of the
railroaﬂ cou»any in the Genetinetion of its fill.

Upon ooneiioration of all of which it is confiﬂently
ﬁibmittmd that th? verﬂiet anﬁ judgment appealed from Should be
reverseﬁ an& a new trial granted.

Hoepeetfnlly subuntted,
Woetton & Bergen,
B. 7.'. Harfi @151...
C. h. Moorman, of Couneol.

 Dotson vs. Norm-an: Mountsv's
Norman: Beasley vs} Noxfma‘nf N0!"
‘man V's. Norman Decided September

._ 2.’). 1914. Appeals l‘mm'l’ike Clrcult
;Court. Opinion of the court by
Judge Hannah, afﬁrming. ;
‘ Deeds—V5:linix.;v~«F‘rau- 3 ; H 4 ,
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court unﬁ announced L0 Lac geurt that {key cvuld

net agree, when it Wuﬁ ahaL uno or were or the .

jurors 531% to the Court LhuL thvy did not unﬂeru

Stand frum the instructions as to uhcth r or nut

the Pjuiutiff could sue Lhu defendant Lhcrouftcr

For damages in Lhis came. thereupon the Court

said LO Lhc jury that the cuurt hud in tructcd

then: as to thc: 11JY 01’ th¢* c;use, :1n11 L¥th {1193‘ hail ,

been upon the grounds Lhcnmclves, and viewed the

prewises; but in answer to {hair question about

suj1uf Lhetwulftex~ the iJaxu“L Gigi 5d§r L0 the jury

 O
0 9
( f;- )

that the Court was. 01‘ the opinion that :hc plain-

tiff could not maintain another action for damages

to this tract of land. in other nerds, the Court

said then that he believed under Lhe law that this

would be an end to all matters pertuinina to this

particular case, if any denune had been sustained.

The Clerk of thin court is ordered to enter this

order no that the facts that Sid occur will appear

in the record."
in the giving of the Verbal inetruotionn or explanations
herein shown to hevv neon given by the Court the defendant
at the time excepted and still excepts. lhe fair inform
once from this incident is theL the jury were unable to
discover any actual injury or damage to plaintiff's lands
wé to}: ocutlai ihiit‘l}? h