C. & O.R. Co. v. Dixon
| Decision Date | 02 February 1926 |
| Citation | 212 Ky. 738 |
| Parties | Chesapeake & Ohio Railway Company v. Dixon. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant — Section Foreman had Duty to "Flag Around the Curve," where Trains Could Not be Seen. — Under rule of railroad, requiring motor cars, when it was impracticable to obtain information as to trains, to observe extreme caution, it was section foreman's duty to "flag around the curve," where trains could not be seen, by sending a flagman ahead.
2. Master and Servant — Whether Section Man Assumed Risks of Operating Motorcar Around Curve Without Flagman Held for Jury. — Whether risks of dangers incident to negligence of foreman in operating motorcar around curve without a flagman, in violation of rule, were assumed by section hand, held for jury.
3. Master and Servant — Servant Entitled to Time and Opportunity to Complain of Danger. — A servant, after learning of risk of danger, is entitled to time and opportunity for making complaint, before he can be charged with having assumed the risk.
4. Master and Servant — Employe May Assume Employer will Not Subject Him to Extraordinary Risks. — An employe has the right to assume that his employer will not subject him to extraordinary risks and hazards while performing his duty, and, unless such risks and hazards are so apparent or great as to cause a man of ordinary prudence to see and appreciate them, and try to avoid them, negligence of the employer will render him liable.
5. Master and Servant — Instruction that, if Section Man Knew of Practice Not to Flag Around Curve, and Acquiesced, he Could Not Recover, Approved. — Instruction that, if section man knew of custom or practice in operating motorcar not to flag around curve where collision occurred, and acquiesced in manner of operation and speed of motorcar immediately before the accident, he could not recover because of failure to flag at time of accident, would have been proper.
6. Appeal and Error — Damages — Refusal of Instruction that Employe, Under Federal Employers' Liability Act, could Recover Only Present Cash Value of Future Earnings, Held Reversible Error. — In action under federal Employers' Liability Act (U.S. Comp. Stats., sections 8657, 8665), for injuries to a section man, refusal of instruction that plaintiff was only entitled to recover present cash value of his future earnings was error, and required reversal.
Appeal from Lawrence Circuit Court.
BROWNING & REED and KIRK, KIRK & WELLS for appellant.
JOHN W. WOODS and J.W. HINKLE for appellee.
Reversing.
The judgment in this case for $25,000.00 for personal injury to appellee, Dixon, is assailed by the railroad company on this appeal as unwarranted and contrary to the law because it violated no duty it owed appellee, Dixon, and therefore was guilty of no culpable negligence, and if there was negligence on the part of the section foreman in failing to flag around the curve before the collision which brought about the injury of appellee, Dixon, the latter assumed the risk of danger from such failure on the part of the section foreman and is for that reason not entitled to recover against the company; and further, appellee assumed the risk of any and all danger arising from the methods of operation of the section car employed by the section foreman, and assumed the risk of danger from the personal negligence of the foreman and is, therefore, not entitled to recover.
The accident occurred about three p.m. on July 28, 1923, while appellee, Dixon, with twelve other section men were riding a motor car on the tracks of appellant company from their place of work up the line towards their tool house, where they expected to store their car and tools and quit for the day. There was a misty rain falling and the weather was disagreeable; for some hours the men had been at work in this; about two o'clock in the afternoon the foreman gave orders to the men, including appellee, Dixon, to load up the tools on the car and head it towards the tool house, but did not say to what point he was going, or whether he had decided to quit for the day. In obedience to the order of the foreman, the car was placed on the track and the tools loaded. The men took their places upon the car, the foreman telling appellee, Dixon, to take a seat on the front of the car so that he might watch the rails of the track to see if there were any defects therein, and in case there were to halt the car and let the repairs be made. The section foreman had charge of the crew and operated the motor; they were driving along at fifteen or twenty miles an hour, according to some of the evidence. On their way towards the tool house they had to pass Ben Bowe curve. This curve passed around a hill or knoll on which at the time grew a lot of vegetation and some trees. In the curve on the left of the track was a cut about four feet high and on top of the bank were weeds and grass three or four feet high, making it impossible for one on a hand car to see around the curve so as to tell what was approaching from the opposite direction. Near the point where the curve commenced was a switch connection to which was attached a track running almost parallel with the main track for several hundred feet. Near this switch point was a switch stand on which was situated a signal light. This light burned oil and required filling once each day up to about the time of the accident. The switch point had been out of order and had necessitated constant attention from the section crew.
While operating the motor car up the track as above stated another motor car, operated as special train No. 151, carrying a number of officials of the railroad, came down the track and around the curve and collided with the motor car on which the section crew was riding, killing the foreman, Rowe, and injuring several others, including appellee, Dixon. Dixon's legs, which were hanging off the car on the front, were caught between the colliding cars and so mashed that one of his legs had to be amputated. His spinal column was broken and several sections of the bone near the caccyx were so injured as to require removal. He was cut in the head and bruised about the body in many places so that he is now a physical wreck, totally incapacitated, as the evidence shows, to support himself or his family. Moreover, he suffers great pain constantly from his injuries and is unable to sleep. His bowels are paralyzed and he requires constant attention. At the time of his injury and for some years before he had been earning from $75.00 to $100.00 per month on an average; at the time of the accident he was about thirty-seven years of age and in good health.
This suit was based upon the negligence of the section foreman, Rowe, appellee Dixon making the following contentions:
He further asserts that he did not assume the risk of Rowe, his foreman, in failing to flag around Ben Bowe curve, for the reason he did not know the foreman was going to or around the curve in time to object or complain and was in effect assured by the foreman that there was no danger ahead.
Appellant company denies each of the foregoing propositions and insists that appellee, Dixon, did assume all the risks of danger incident to the manner in which Rowe, the foreman, operated the car around Ben Bowe curve, and says that it was the custom of the foreman, with the acquiescence of appellee, to disregard the rule of the company requiring a motor car to flag around a curve where the track could not be seen far enough ahead to protect those on the car from cars traveling in the opposite direction. The company also complains that the instructions given by the court to the jury were erroneous, and especially does it complain of the failure of the instruction upon the measure of damages to direct the jury to find the present cash value of the future earnings of appellee, Dixon, and to limit its finding to such cash value. Incidentally it says that the verdict is grossly excessive, but we are of opinion that if it is possible for one of the age of appellee, Dixon, earning the wages which he had been receiving at the time of his injury, to merit a verdict of $25,000.00 it would be hard to see how appellant could hope to disturb this verdict upon the grounds of excessiveness, all the facts and circumstances considered. However, as the judgment must be reversed for other reasons it is not necessary to pass upon that question, and we expressly reserve it.
The company had adopted, long before the happening of the accident, certain rules governing the operation of motor cars on its tracks, some of which, especially Nos. 10 and 13, have more or less application to the facts of this case. Rule No. 10 reads as follows:
"When impracticable to communicate with train dispatcher, or to obtain information in...
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