C. & O. R. Co. v. Kornhoff

• Decision Date: 14 December 1915
• Court: Kentucky Court of Appeals
• Parties: Chesapeake & Ohio Railway Company v. Kornhoff.

Page 353

167 Ky. 353

Chesapeake & Ohio Railway Company v. Kornhoff.

Court of Appeals of Kentucky.

Decided December 14, 1915.

Appeal from Kenton Circuit Court (Criminal, Common Law and Equity Division).

GALVIN & GALVIN for appellant.

BYRNE & READ for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.

The appelle, George R. Kornhoff, was an employe of the appellant railroad company as a general machinist, whose duties required him, upon direction of his foreman, to make repairs to any of the shop machinery, shafts, stationary engines, turntable, etc., belonging to the appellant and used by it in the conducting of its business as a common carrier, whether such machinery was located in Kentucky or other points into and through which the appellee's line of railroad ran.

On the morning of August 14, 1913, or just prior thereto, he was directed by one Mulcahey that some part of the running gear of the only turntable belonging to appellant, which was located in the city of Covington, was defective and needed repairing, and inasmuch as it would take something like two hours for the necessary repairs to be made, it was arranged that the appellee should be ready to and commence to make the repairs at one o'clock P. M. on that day, and it was understood between him and Mulcahey that the turntable would not be used before three o'clock on that afternoon. Accordingly, after the procuring of a helper, the appelle went into the pit, around which the turntable revolves, to do the work assigned to him. The impaired machinery of the turntable was beneath it, and in order to get at the work it was necessary for appellee to occupy a stooping position. One of the tools which it was necessary for him to use was what is denominated in the testimony as a chisel bar, it being a piece of steel about one and one-half inches in diameter and about four and one-half feet long. Within a very short while after appellee had taken his position, and with another had commenced to use the tool described, the turntable was moved, and in such a manner that it caught this bar and caused same to penetrate entirely through the abdominal cavity of appellee. The place of entry was at the lower left side of the abdomen, and the place of exit being at the right side of the spinal column, passing through the ilium bone. He was carried to a hospital, where the bar was removed, and where he remained under treatment until November 7, 1913, when, for the first time, he was enabled to walk with the aid of crutches, and has continued to improve until now he is able to get about with the aid of a walking cane. On the 20th day of June, 1914, this suit was filed in the Kenton Circuit Court, whereby the appellee sought to recover from the appellant, under the act of Congress, known as the Federal Employers' Liability Act, the sum of $50,000.00, as compensation for his injuries and sufferings. The answer consisted of a denial and a plea of contributory negligence. There was also a plea to the jurisdiction of the court presented, upon the contention of appellant that the Federal Act under which the suit was brought did not confer jurisdiction upon the circuit courts of this Commonwealth in such cases, because under the procedure in this State a verdict may be rendered in such cases by a less number of the jury than the whole panel, and it is argued that this violates the seventh amendment to the Constitution of the United States, wherein the right of trial by a jury is guaranteed in all cases, where the amount in controversy exceeds $20.00, the argument being that the jury mentioned in the amendment referred to, must be a jury of twelve men, and that the Congress of the United States, therefore, had no power to confer jurisdiction upon, or permit, a case arising under the statute to be tried by any forum whose practice or procedure permits a verdict to be rendered by any number of the jury less than the whole, and this contention, together with other questions of practice and procedure, was insisted upon throughout the trial of the case. In disposing of this contention at the outset it may be said that this precise point was presented to this court for determination upon a petition for a rehearing in the case of Chesapeake & Ohio Railroad Co. v. Kelley's Administratrix, 161 Ky., 655. In the course of that opinion, wherein this contention was denied, this court, inter alia, said:

"It will, however, be observed that this congressional legislation does not confer jurisdiction on State courts to hear and determine cases arising under the act; it merely recognized the existing jurisdiction of State courts, and to make plain this jurisdiction the act provides that, `no cases arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

We do not feel called upon to re-argue the question in this opinion after its thorough consideration in the Kelley case, contenting ourselves by saying that the reasoning therein, upon the question being considered, still appears to us to be sound and logical, and we adhere to the ruling therein made. It might be added, however, that the Federal statute in question did not create a new cause of action which had not theretofore existed and an action thereunder did not become a new one upon the passage of the act subject to the exclusive jurisdiction of the Federal courts, but only certain rules of procedure, including the effect to be given to defensive pleas, which had theretofore been allowed, where changed or altered by the statute in question. It had immemorially been the law that the servant could recover compensation from the master for injuries negligently inflicted, whether the master or servant was engaged in interstate commerce or other business. And the various States of the Union had jurisdiction to try such cases although the business out of which the injury grew was interstate in its nature long before the congressional statute was enacted. It follows that the rulings of the trial judge upon this question throughout the trial of the case was proper. The trial resulted in a verdict in favor of the appellee for the sum of $12,500.00, upon which judgment was rendered, and the motion for a new trial being overruled, this appeal is prosecuted.

It is contended that neither appellant nor appellee was engaged in interstate commerce at the time the injury occurred. The facts upon this question are: that the appelle owns a line of railway running into Kentucky and across its borders into other States, including Indiana and some Eastern States, and that the turntable in question was the only one located in Covington, which was the end of a division of appellee's railway, and that it was used constantly by the appellee in the handling of its engines engaged both in intrastate and interstate traffic. It might be stated that there was no article or instrumentality necessary in the conducting of appellee's business more constantly used than this turntable. The proof showed that the injury to appellee was produced by a servant of appellant attempting to move the turntable so that it might be used in reversing the position of an engine which had just completed an interstate journey from Peru, Ind., through Cincinnati, Ohio, into Covington. This engine had been detached from the train but in order for it to be moved into the roundhouse, there to remain until it was needed for another journey, it was necessary for it to be turned around in order to get into the round house upon the track selected for it. The testimony shows that after being detached from the train, some of the fire had been withdrawn from it, but it still held a sufficient amount of steam to propel itself in upon the turntable and from there into the roundhouse.

The argument is made that this engine had ended its interstate trip when it was disconnected from the train, and that it, therefore, ceased to be an appliance used in interstate commerce. We cannot agree with this contention. If the question hinged entirely upon the correctness of this position, the appellant could not succeed, because we are convinced that the engine at the time was still being used as an appliance in interstate commerce until it reached the location where it would remain until called upon for another trip or for other purposes, and its interstate trip was not ended until then. A like contention is also made with reference to the turntable being an article then used in interstate commerce, but under the authorities to which we shall hereafter refer, the unsoundness of this contention will at once appear, because it is adjudged by almost all, if not all, of both Federal and State courts of last resort, that any instrumentality used in the repair of, construction of, or adjustment of, any of the carrier's machinery or appliances, through and by means of which interstate traffic is carried on, are themselves articles of interstate commerce. A pertinent authority applicable to the question relating to the engine is found in the case of St. L. & San Francisco Ry. v. Seale, 229 U. S., 156. In that case the railroad company was engaged in both intrastate and interstate transportation, and it was the duty of the plaintiff as yard clerk to examine incoming and outgoing trains, and to make and keep a record of their numbers, and the initials of the cars, and to check same and to make a record of the seals, as well as to label the cars for the purpose of placing them in outgoing trains, or upon the proper tracks for unloading, if they should come out of an incoming train. He was on his way to meet an incoming train from some point in the State of Oklahoma to a point in Texas, which was the terminus of its trip, and while on his way he sustained the injuries for which he sued. It was insisted by the railroad company that inasmuch as he was on his way to discharge his duties to a train which concluded its journey at that...