Louisville & N.R. Co. v. Johnson's Adm'x

• Decision Date: 18 December 1914
• Citation: 161 Ky. 824,171 S.W. 847
• Parties: LOUISVILLE & N. R. CO. v. JOHNSON'S ADM'X.
• Court: Kentucky Court of Appeals

171 S.W. 847

161 Ky. 824

LOUISVILLE & N. R. CO. v. JOHNSON'S ADM'X.

Court of Appeals of Kentucky.

December 18, 1914

Appeal from Circuit Court, Rockcastle County.

Action by John H. Johnson's Administratrix against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

B. D Warfield, of Louisville, J. W. Alcorn, of Stanford, and J. W Brown, of Mt. Vernon, for appellant.

C. C Williams and L. W. Bethurum, both of Mt. Vernon, and Chapeze & Crawford, of Louisville, for appellee.

CARROLL J.

In this suit, brought under the federal Employers' Liability Act by the administratrix of John H. Johnson, to recover damages for his death, alleged to have been caused by the negligence of the appellant railroad company, there was a verdict and judgment for $5,000.

Several questions are raised by counsel for appellant that we do not think it necessary to consider in this opinion, as it is not probable they will occur on a retrial of the case, and so we will go at once to the principal grounds relied on for reversal, which are that the trial court erred in refusing to direct a verdict for the railroad company and in giving instructions.

The facts developed by the evidence, and about which there is no material dispute, are, in substance, these: The railroad company, at the time Johnson came to his death, was engaged in interstate commerce, and Johnson was employed by it in such commerce. He was a section hand or trackman, engaged with a crew of men in repairing the track in the yards of the railroad company at East Louisville, Ky. These yards are occupied by a large number of tracks, used by the company, some of the witnesses estimating the number of tracks at 25, and others at 50 or 75. These tracks were used for purposes connected with the movement of cars and the making up of trains; and there was employed by the company, in and about these yards in various duties concerning the repair of tracks and cars and the movement of trains, from 300 to 500 men. The duties in which these men were engaged required them to be at different parts of the yard, and they were constantly crossing and recrossing these tracks.

On the day Johnson was killed he was engaged, as one of a crew of men, in repairing what is known as track No. 9 in these yards. Running parallel with track No. 9 was track No. 8, and on track No. 8, at or near the place where this gang of men was working, there stood an open box car. Shortly before Johnson was killed it commenced raining, and the men went into this car to get out of the rain. After remaining in the car a short while they were directed by the foreman to go to work, and all of them left the car for this purpose. Immediately after leaving the car, Johnson, while standing urinating on track No. 8, was struck and killed by the movement of cars on this track. At this point the evidence diverges and conflicts. The evidence for the plaintiff tended to show that the foreman of the crew with which Johnson was working had directed or requested the men not to go to a closet, which was some 300 or 400 yards distant, when they wanted to urinate but to go behind or in front of cars standing near by, in order to save the time that would be required to go to the closet; and it was further shown that it was usual and customary for the men to do this, and that this custom and usage was known, not only by the foremen of section crews, but by all the men operating and controlling the movement of cars in the yards. It further appears from this evidence that when the men left the car to go to work, Johnson and the foreman walked together from the door of the car out of which they had come in a northerly direction between tracks Nos. 8 and 9 until they reached the north end of the car, when Johnson left the foreman and went to the north end of this car with his face toward the car and his back toward the north, for the purpose of urinating, the foreman continuing in a northerly direction between the two tracks, and that at this time there were no cars on track No. 8 north of the car in front of which Johnson was standing; that when Johnson had been standing in this way for a few moments a coal car that had been disconnected from the engine some distance from where Johnson was, by the method known as a "running switch," came down on track No. 8 from the north and collided with the car at the end of which Johnson was standing; that he was caught in this collision and killed almost instantly; that there was no person on this coal car to give warning of its approach or presence or to control its movements; and that it was running at a speed of about 20 miles an hour when it struck the car in front of which Johnson was standing. These witnesses further said that when the rapidly moving coal car struck the standing car it made a great noise, and the force was such as to lift the end of the standing car from the track and drive it forward some distance. It was further shown by plaintiff's evidence that it was usual and customary, in moving cars as this coal car was moved, to have some person on the front end of the car for the purpose of giving warning of its approach and to control, if necessary, its movements and the rules of the company so provided, and, further, the custom of the foreman of the gang of men to keep a lookout for moving cars like this and warn the men of their approach, and that the foreman who was walking with Johnson when Johnson left him to go in front of the car continued walking north between tracks 8 and 9 and was passed by this coal car when it was about 30 yards from where Johnson was standing, but that he did not give Johnson any warning of its approach. The evidence in behalf of the railroad company tended to show that a urinal or closet had been provided for the use of the sectionmen and other employés and that it was not usual or customary for the sectionmen to go between or in front or behind standing cars for the purpose of urinating, nor were they requested or directed so to do by the foreman; that there was standing on track No. 8, when the men came out of the car into which they had gone to get out of the rain, several box cars, some of them coupled together and others standing several feet apart, and that Johnson, for the purpose of urinating, went between these box cars, and his view of the north end of track No. 8 was obstructed by the box car standing between him and the north end of this track, and likewise this box car hid Johnson from the view of any person on the north end of this track; that while he was thus standing between these box cars, a cut of cars was shunted in on track No. 8 from the track with which it connected, by the method known as a "running switch," and that these cars so shunted in, after they were cut loose from the engine, moved south on track No. 8, toward the cars between which Johnson was standing, at a speed of from four to six miles an hour; that there was on the front car of this cut of cars a brakeman stationed at the brake for the purpose of warning persons of the approach of the cut of cars, and to control their movements, which he could have done by the application of the brake had it become necessary; that when this cut of cars struck the box car, it pushed the box cars a short distance, and Johnson was killed by being crushed by the two box cars between which he was standing; that the brakeman on the cut of cars did not know that Johnson was standing between the cars, nor did the section foreman know that he was there.

It will thus be seen that, according to the evidence for the railroad company, it was not guilty of any act of negligence that caused or contributed to the death of Johnson, as under its evidence the cut of cars that came in on track No. 8 was under control, running at a slow rate of speed and in charge of a brakeman in a position to give warning of its approach, while Johnson was between standing cars where he could not be seen by the brakeman. On the other hand, the evidence for the plaintiff made out a case of negligence entitling the jury to determine the issue and award damages.

With the evidence in the condition stated the court gave to the jury seven instructions. Instruction No. 1 reads:

"If you believe from the evidence in this case that the defendant caused, suffered, or permitted a cut of cars to run over the defendant's track at the time and place mentioned in the evidence, without any person or persons in a position on said cut of cars to maintain a lookout and give warning of their approach, and to control their movements, and that said cars ran over and against the deceased, Johnson, and killed him, by reason of said failure to have a person or persons in a position on said cars to give warning of the approach and control their movements, and but for such failure the accident would not have occurred, then this is negligence, and you should find for the plaintiff."

In instruction No. 2 the jury were told, in substance, that if they believed from the evidence that Johnson stepped behind a box car to urinate in the presence of the foreman, and that it was the custom of the sectionmen so to do, or that in so doing he was acting under the orders of the foreman, and that while in the act of urinating, a cut of cars ran upon him inflicting injuries from which he died, and the foreman negligently failed to ascertain the approach of the cars or to give notice to Johnson of their approach, if it was reasonably within his power to do so without endangering his own life, they should find for the plaintiff. They were further told that, unless they believed that the death of Johnson was brought about by the state of facts set out in instructions 1 and 2, they should...