City of New York

<p>Case 84. — ACTION BY ALBERT C. HATHAWAY’S EXECUTRIX AGAINST LOUISVILLE, H. & St. L. R. CO. FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE.</p> <p>Appeal from Jefferson Circuit Court, Common Pleas Branch., Second Division.</p> <p>Ti-iomas R. Gordon Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. When, by deducting one rough estimate of a distance from another rough estimate of a distance between a running train and a stationary object, the remainder is a distance of thirty feet, which at the rate of- speed of the train, would be traversed in one and one-half seconds, and on this alone the plaintiff relies to prov-e a “negligent delay” in giving a signal to- stop the train, the court should have peremptorily instructed the jury to find for the defendant, as there is no proof of any facts from which negligence could be inferred. The foundation for the inference being ’speculation and guesses. (Wintuski’s Adm’r v. L. & N., 14 Ky. Law Rep., 580; Hughes’ Adm’r v. Cincinnati, &c., R. Co., 91 Ky., 526; Louisville Gas Co. v. Kaufman, 106 Ky., 131; L. & N. v. W(athen, 22 Ky. Law Rep., 85.)</p> <p>2. When all the witnesses testify that the nature of an object seen lying beside t.he track was never suspected to be a person until it was too late to stop the train, the court should not -submit the case to- the jury on the theory that the jury might conclude the- real character of the object was discovered sooner than any witness said it was or could have been discovered, (Earley’s Adm’r v. L., H. & St. L., 24 Ky. Law Rep., 1808; Goodman’s- Adm’r v. L. & N., 25 Ky. Law Rep., 1086.)</p> <p>1. The main and practically the only contention of the counsel for appellant is that the verdict is contrary to the evidence. There is no question of law involved. Under our system the jury is the absolute and unqualified- trier of the facts of a jury case. Its province is as complete and unassailable as that of the court to direct it as to the