Blackaby v. Louisville & N.R. Co.

• Court: Court of Appeals of Kentucky
• Writing for the Court: SANDIDGE, C.
• Citation: 213 Ky. 368,280 S.W. 1093
• Decision Date: 02 March 1926
• Parties: BLACKABY v. LOUISVILLE & N. R. CO.

280 S.W. 1093

213 Ky. 368

BLACKABY
v.
LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

March 2, 1926

Appeal from Circuit Court, Fayette County.

Action by Clarence Blackaby against the Louisville & Nashville Railroad Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Franklin, Talbott & Chapman and James A. Dixon, all of Lexington, for appellant.

Hunt, Northcutt & Bush, of Lexington, Woodward, Warfield & Hobson and Ashby M. Warren, all of Louisville, and C. S. Landrum, of Lexington, for appellee.

SANDIDGE, C.

Appellant, Clarence Blackaby, was employed as a section hand by appellee, Louisville & Nashville Railroad Company, and, while engaged in that labor for it, claims to have been injured because of its negligence. He instituted this action to recover for the injury, and upon the trial, at the conclusion of the evidence introduced for him, the trial court sustained appellee's motion for a directed verdict in its favor. From the judgment entered dismissing his petition, he prosecutes this appeal.

It appears that in September, 1923, while a section crew was engaged in track repairing, appellant, using tie tongs, was pulling a new creosoted cross-tie under the rails of appellee's railroad track to replace an old tie that had been removed. The tie tongs slipped, and appellant fell backwards across the other rail of the track, receiving the injuries of which he complains. He contends that he made a case sufficient to go to the jury upon the theory that appellee failed to furnish him a safe instrumentality with which to work. There is no contention or testimony that any part of the tie tongs was defective or broke or gave way, or that any of its mechanism was out of order, to which appellant's injuries may be attributed. The sole particular in which it is claimed for appellant that the tie tongs were unsafe was that its hooks or points which come in contact with and grip the ties were not sharp enough. We find that the testimony offered for appellant on that question is largely the theory of the respective witnesses as to how appellant happened to fall. They theorize that the tie tongs slipped and caused appellant to fall because the points which came in contact with the tie were not sharp enough to hold. The accident occurred in the afternoon, and it seems that the tie tongs in question had been used all day without slipping. Two of them, neither of which, however, appears to be the particular tongs being...