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Campell v. Paducah & Louisville Railway2/18/2005
or else Campbell would have died long before. The plaintiff was never able to refute this argument, or even to produce evidence tending to contradict it. Also, the court did not need to draw the inference that Campbell himself placed the red wire around the exhaust pipe; the evidence was entirely lacking as to who placed it there and when, and thus no conclusions could be drawn from the evidence about whether it would have been discoverable by annual inspection. Even though the railroad asserted in its opening statement and in arguments made to the court (as it does in its brief to this Court) that the strong implication is that Campbell himself placed the wire there, one does not need to draw that conclusion to hold that it is impermissible to fill in the gap in the plaintiff's evidence with speculation. It is just as speculative to say that the railroad placed it there at a time before an annual inspection would have discovered it. The trial court drew this same conclusion, and correctly granted the directed verdict.
We are also not persuaded that the answer to the dismissed third-party defendant's interrogatory about the basis of the third-party complaint binds the railroad as an admission that any defect in the furnace was discoverable by annual inspection. Reading that answer in its entirety reveals that the railroad claimed that there was a defect in the heat exchanger that would have been discoverable by annual inspection. But as the evidence developed in discovery, it was clear that whatever the cause of the carbon monoxide leak, it was not from a crack in the heat exchanger, because none was discovered. The answer to the interrogatory, contrary to the plaintiff's assertion, is not an admission; it is a statement of a theory of liability which was later determined to be without merit.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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