Alexander v. Louisville & N. R. R. Co.

• Decision Date: 06 February 1886
• Citation: 7 Ky.L.Rptr. 621,83 Ky. 589
• Parties: Alexander v. Lou. & Nash. R. R. Co.
• Court: Kentucky Court of Appeals

83 Ky. 589

7 Ky.L.Rptr. 621

Alexander v. Lou. & Nash. R. R. Co.

Court of Appeals of Kentucky.

February 6, 1886

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

EMMET FIELD FOR APPELLANT.

1. If in an action by an employee of a railroad company to recover for injuries sustained in the course of his employment, the company admits negligence, but relies upon the negligence of plaintiff as a defense, there can be no judgment rendered for the defendant unless the jury find the plaintiff guilty of the contributory negligence alleged. If such alleged contributory negligence consisted in a disobedience of the company's rules, a printed copy of the rules can not be admitted in evidence when it is proved that the plaintiff was ignorant of the existence of the rules. (Wood on Master and Servant, 187.)

2. The question for the jury is not an abstract question of negligence in general, but whether, in each case, the plaintiff was guilty of the contributory negligence alleged??

3. An employer engaging the services of a person known to be inexperienced, can not demand of him the skill exercised by one accustomed to such employment, but only the prudent exercise of such skill as he himself possesses. (Southern Wheel and Handle Co. v. Moorman, 6 Ky. Law Rep., 366; Wood on Master and Servant, 301.)

4. It is the duty of the company to notify inexperienced employees of the dangers incident to the employment. (Wood on Master and Servant, 714; R. R. Co. v. Fort, 17 Wal., 554; Coomes v. Cordage Co., 100 Mass. 23; Parkhurst v. Johnson, 50 Mich. 70.)

ISAAC CALDWELL AND WILLIAM LINDSAY FOR APPELLEE.

1. It was necessary for plaintiff to show that the company knew, or ought to have known, the insufficient condition of its machinery; and if it was plaintiff's duty also to have this knowledge, he can not recover for injuries resulting from such defect in the machinery. (Thompson on Negligence vol. 2, page 1009; Ibid., page 992.)

2. If an employee knows, or, by the exercise of ordinary diligence could know of the existence of defects in machinery or apparatus, the employer will not be liable for any injury resulting from such defects, unless it be shown that he had actual knowledge of them, and failed to notify the employee of their existence. (Sullivan v. Bridge Co., 9 Bush, 88, 89; Quaid v. Cornwall Bros., 13 Bush 604.)

3. It was appellant's duty to know the condition of his train and he can not recover for injuries resulting from defects, the existence of which he should have known.

4. Appellant was bound to take notice of the rules of the company, and a printed copy of them was competent evidence.

5. It was incumbent on appellant to show that he was free from neglect, and the failure of the jury to find contributory negligence was no ground for refusing defendant a judgment.

OPINION

LEWIS JUDGE:

The injury for which appellant seeks to recover in this action was received by him while engaged in the service of appellee as conductor of a mixed train of cars, running on a narrow-gauge railroad, extending from the city of Louisville, about twelve miles in length.

At the time of the injury he was endeavoring to detach from the train and put upon a spur switch, about three miles from that city, called Callahan's switch, four empty flat-cars, which, by reason of the main track being up grade at that place, had to be done either by the use of a rope or by what is called a running switch, that is, cutting the cars off from the locomotive while in motion, and letting them, by the impetus given, run upon the switch track, the necessary change of rails at the intersection being made after the locomotive passes, the speed of which is accelerated upon being cut loose.

But the four cars being, on that occasion, without brakes, or such as could be used, appellant found it impossible to stop or check them on the down grade of the switch track, and to avoid a dangerous collision with another car standing thereon, loaded with stone, he jumped off one of the flat-cars, falling against rocks near the track, and in some way getting one of his legs run over by a car wheel, whereby he was severely and permanently injured.

The ground upon which he bases his right to recover, as set out in the petition, is the alleged negligence of appellee in providing him with cars having defective brakes that would not work when he attempted to stop the four cars on the switch, whereby the injury complained of was caused, of which defects appellee knew or might have known, by the use of ordinary diligence, and of which appellant did not know.

Appellee admits in its answer that the brakes on the four cars were negligently out of order, and did not serve the purpose for which brakes are intended, and that by reason thereof appellant was injured; but says he was at the time its chief officer and agent and the sole conductor of the train, and had control and supervision of all the employees engaged in the running operations of the road, and of the rolling stock used on the road, and that the defects mentioned were known, or by reasonable diligence on his part might have been known, to him.

It is also stated in the answer, and attempted to be proved, that amongst appellee's printed rules for operating trains which its conductors are required to obey, is one forbidding the placing of cars on switch tracks, by the method called a running switch, the one used when appellant was injured, which is always attended with danger. But conceding appellant knew, or that it was his duty to know, such rule existed, still we do not think his violation of it is a sufficient defense to this action. For the evidence tends to show that it is the most, if not the only practicable way to put cars on Callahan's switch, and had been so habitually resorted to, before appellant was employed as conductor, as to raise the presumption appellee was aware of...