172 S.W. 517 (Ky.App. 1915), Louisville & N.R. Co. v. Walker's Adm'r

Citation:172 S.W. 517, 162 Ky. 209
Opinion Judge:CARROLL, J.
Party Name:LOUISVILLE & N. R. CO. v. WALKER'S ADM'R.
Attorney:B. D. Warfield and C. H. Moorman, both of Louisville, and Hiram H. Tye, of Williamsburg, for appellant. O'Rear & Williams, of Frankfort, and Rose & Pope, of Williamsburg, for appellee.
Case Date:January 19, 1915
Court:Court of Appeals of Kentucky
 
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Page 517

172 S.W. 517 (Ky.App. 1915)

162 Ky. 209

LOUISVILLE & N. R. CO.

v.

WALKER'S ADM'R.

Court of Appeals of Kentucky.

January 19, 1915

Appeal from Circuit Court, Whitley County.

Action by Ancil Walker's Administrator against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

B. D. Warfield and C. H. Moorman, both of Louisville, and Hiram H. Tye, of Williamsburg, for appellant.

O'Rear & Williams, of Frankfort, and Rose & Pope, of Williamsburg, for appellee.

CARROLL, J.

The Louisville & Nashville Railroad Company is engaged in interstate commerce, and Ancil Walker, on the day of his death, was employed by it as a laborer in such commerce. Whether he was so employed immediately at the time of his death is a much disputed question, and will be later carefully considered. At the time of his

Page 518

death he was about 30 years of age and left surviving him a widow and one child about 3 years of age. In this action by his administrator to recover damages for his death there was a verdict and judgment accordingly for $4,750. Before stating the grounds of reversal relied on by counsel for appellant a somewhat extended statement of the facts should be made in order that the questions submitted for review may be intelligently disposed of.

The railroad company at the time Walker came to his death was engaged in repairing or rebuilding a trestle known as the Oak street trestle, situated on its line of road in the state of Tennessee and near the city of Knoxville, and Walker was employed as a laborer in this work. The foreman of the crew engaged in this work was A. C. Crutchfield, who also operated the boarding cars in which the men lived. Crutchfield had charge of the bridges of the railroad company in a territory traversed by its line of road extending from a point in Kentucky to a point in Tennessee, and the boarding cars, which were owned by the railroad company, were moved by it to the different places at which Crutchfield and his men were ordered to work. The matter of boarding the men and the amount charged for this service was under the control of Crutchfield, the railroad company having apparently no direct concern in it, although it would, upon request of Crutchfield, take out of the wages due the men the board for his benefit.

On the day Walker was killed, the boarding cars, in which the men, including Walker, boarded and stayed at night, were standing on the tracks of the company something over a mile from the trestle on which this crew of men were at work, and the men went from these boarding cars to their work each morning and returned to them at the close of the day. Sometimes the men went to and from the boarding cars to their work on hand cars of the company, and at other times they walked. On the day in question the men started from their work to the boarding cars on hand cars, but after going a short distance were compelled to take the hand cars off the track on account of obstructions, and they were then directed by Crutchfield, the foreman, to walk to the boarding cars, and this they set out to do by walking on the track of the company as it was usual and customary for them to do when not riding, there being in fact no other convenient or practicable way to go to and from the boarding cars and the work except on the track. Between the place of work and the boarding cars the track for a short distance ran on a high trestle that the men had to walk across, and it appears that on the outside of each rail of the track, which was entirely unprotected by barriers of any kind, there was a running board upon which the men could stand or walk, or they could walk between the rails on the ties. As Walker was walking across this trestle, a car known as a push car, owned by the company, came down the track from the direction in which Walker was walking. For the purpose of letting this car, which was being operated by two employés of the company, pass, he stepped on the plank outside the rail and, while so standing, was struck and knocked from the trestle by a large splinter that projected several inches over the side of the car from a piece of timber on the car to which it was attached. The piece of timber from which the splinter projected, as well as the other pieces on the car, consisted of material which the company found it could not use in its work and the men who were operating the car were taking these pieces of timber to their homes after the day's work was over for the purpose of using them as kindling or firewood, having been permitted by an assistant foreman of the company, who had control of the car, to use it for the purpose of carrying home the timber that another foreman of the company had told them they might take.

Brad Thomas, one of Crutchfield's crew, was walking on the trestle with Walker, but a few feet ahead of him. He testified that he saw the push car coming when it was a short distance away and stepped off the track onto...

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