C. & O. R. Co. v. Holbrook
| Decision Date | 21 April 1925 |
| Citation | 208 Ky. 488 |
| Parties | Chesapeake & Ohio Railway Company v. Holbrook, by, etc. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant — Whether Section Hand Assumed Risk of Injury to Eye by Metal Sliver Held for Jury. — In action for injuries sustained by section hand while holding a rail which was being cut by cutter with battered head, when a small sliver struck him in the eye, whether he assumed the risk held for jury.
2. Master and Servant — Whether Injury to Section Hand Resulted from Defective Cutter Head Held for Jury. — In action for injuries sustained by section hand while holding a rail which was being cut when a small sliver struck him in the eye, whether injury resulted from defective condition of cutter head held for jury.
3. Appeal and Error — Trial — Instruction Eliminating Question of Proximate Cause Held Error and Prejudicial. — In action for injuries sustained by section hand while holding a rail which was being cut when a small sliver struck him in the eye, instruction authorizing recovery for plaintiff if cutter was defective and he was injured by a sliver from it, thus eliminating question of proximate cause, held erroneous and prejudicial.
4. Master and Servant — Showing Proximate Cause of Injuries Essential. — Section hand, injured while holding a rail which was being cut, was not entitled to recover without a showing that cutter was defective, that he was injured by a chip therefrom, and that sliver was thrown off as result of defective condition of cutter.
5. Damages — Instruction Held Erroneous as Not Fixing Any Standard by which to Measure Compensation for Injury. — In action for injuries, instruction held erroneous as authorizing jury to compensate plaintiff for his injury without fixing any standard by which to fix compensation.
Appeal from Johnson Circuit Court.
WORTHINGTON, BROWNING & REED and KIRK, KIRK & WELLS for appellant.
W.M. VAUGHAN & SON for appellee.
Reversing.
Appellee. a boy 19 years of age, was at work as a section hand for appellant. Several crews were engaged in clearing a wreck which had occurred some sixteen hours before. The tracks were cleared but the rails had not been closed and for this purpose two T-rails had to be cut. Two pairs of workmen, each composed of a section foreman and his helper, were engaged in this and hastening its accomplishment.
To do this a T-rail cutter is placed edge down upon the rail and struck with a heavy sledge. The cutter is a wedge-like tool about six inches long, one and one-half inches thick near the top, from which is beveled a head or striking surface, the other end tapering to a cutting edge of hardened steel. It is fitted on a handle about two feet long and when in use is held by one man, while a second does the striking.
At the time in question appellee was standing upon and steadying a rail which was being cut, when a small sliver struck him in the eye. He was carried to a hospital and treated, but it became necessary to remove his eyeball. In this suit by his next friend he recovered judgment for $3,000.00.
In addition to the above admitted facts it is established by all the witnesses that they were using several T-rail cutters and that the head of each of these was battered and spread by previous use. The foreman cutting the rail near Holbrook, had laid aside two of these as defective and was using a third. It was also defective in this respect but was the best he had.
There is some evidence that it was suggested at the time that they had some new cutters at the caboose but that the officer in charge was unwilling to wait for them and directed the work to proceed, though this is denied.
The father of plaintiff testified that at the hospital he was shown the sliver taken from his son's eye; that it was about one-half the size of his finger nail and very thin, with a teat on each edge.
Plaintiff introduced practically all of the witnesses present at the time of the injury and there is but little conflict in the evidence as to the facts.
A number of these qualified as to their experience in work of this character and gave it as their opinion that the sliver described came from the defective head of the cutter, while others with similar experience testify that in their opinion it came from either the rail that was being cut or from the edge of the cutter as the two came in contact.
On this evidence it is claimed that the court should have given a peremptory instruction for defendant. It is true that the cutter in question was a simple tool and the defect obvious and if the injury had resulted to either the one who was holding the hammer or the one striking a recovery might be denied on the ground of assumed risk. C., N.O. &...
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